Investment Assets Those assets of the Fund as the Advisor and the Fund shall specify in writing, from time to time, including cash, stocks, bonds and other securities that the Advisor deposits with the Custodian and places under the investment supervision of the Sub-Advisor, together with any assets that are added at a subsequent date or which are received as a result of the sale, exchange or transfer of such Investment Assets.
PIPE Investment (a) Following the Original Agreement Date and until the date of the mailing of the Proxy Statement to the stockholders of Acquiror may enter into subscription agreements (each, a “Subscription Agreement”) with investors (a “PIPE Investor”) relating to an investment in convertible preferred stock of Acquiror (“PIPE Securities”) pursuant to a private placement to be consummated immediately prior to the consummation of the Business Combination (the “PIPE”), in either case, on terms mutually agreeable to Acquiror and the Company acting reasonably and in good faith (a “PIPE Investment”), provided that, unless otherwise agreed by Acquiror and the Company, the aggregate gross proceeds under the Subscription Agreements shall not exceed $100,000,000 (the “PIPE Investment Amount”), provided further that, such PIPE Investment Amount shall be increased to account for any fees paid by the Company in connection with the negotiation, execution and/or consummation of the PIPE Investment Amount. In connection with Acquiror seeking a PIPE Investment, Acquiror and the Company shall, and shall cause their respective Representatives to, cooperate with each other and their respective Representatives in connection with such PIPE Investment and use their respective commercially reasonable efforts to cause such PIPE Investment to occur (including having the Company’s senior management participate in any investor meetings and roadshows as reasonably requested by Acquiror). In connection with a PIPE Investment, to the extent necessary to address the treatment of the PIPE Securities underlying such PIPE Investment hereunder, Acquiror and the Company shall negotiate in good faith to amend or otherwise modify this Agreement to reflect such PIPE Securities.
(b) Acquiror shall not reduce the PIPE Investment Amount or the subscription amount under any Subscription Agreement or reduce or impair the rights of Acquiror under any Subscription Agreement, permit any amendment or modification to be made to, any waiver (in whole or in part) of, or provide consent to modify (including consent to terminate), any provision or remedy under, or any replacements of, any of the Subscription Agreements, in each case, other than any assignment or transfer contemplated therein or expressly permitted thereby (without any further amendment, modification or waiver to such assignment or transfer provision); provided, that, in the case of any such assignment or transfer, the initial party to such Subscription Agreement remains bound by its obligations with respect thereto in the event that the transferee or assignee, as applicable, does not comply with its obligations to consummate the purchase of the PIPE Securities contemplated thereby, unless otherwise approved in writing by the other Party (which approval shall not be unreasonably withheld, conditioned or delayed), and except for any of the foregoing actions that would not increase conditionality or impose any new obligation on Acquiror.
(c) Acquiror shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by any Subscription Agreement to which it is a party on the terms and conditions described therein, including maintaining in effect such Subscription Agreement and to use its reasonable best efforts to: (i) satisfy in all material respects on a timely basis all conditions and covenants applicable to Acquiror in such Subscription Agreement and otherwise comply with its obligations thereunder, (ii) confer with the Company regarding timing for delivery of any closing notice pursuant to such Subscription Agreement, and (iii) enforce its rights under such Subscription Agreement in the event that all conditions in such Subscription Agreement (other than conditions that Acquiror, the Company or any of their respective Affiliates control the satisfaction of and other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied, to cause the applicable PIPE Investor to pay to (or as directed by) Acquiror the consideration set forth in such Subscription Agreement and consummate the transactions contemplated by such Subscription Agreement at or prior to Closing, in accordance with its terms.
(d) Without limiting the generality of the foregoing, Acquiror shall give the Company prompt written notice: (i) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could give rise to any breach or default) by any party to any Subscription Agreement known to Acquiror; (ii) of the receipt of any written notice or other written communication from any party to any Subscription Agreement with respect to any actual, potential, threatened or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to any Subscription Agreement or any provisions of any Subscription Agreement; (iii) of any amendment, waiver or modification to any Subscription Agreement entered into by Acquiror that such Party was permitted to make without the prior written consent of the Company in accordance with this Section 8.04(d), it being understood that such amendment, waiver or modification is not conditioned on delivery of such notice and (iv) if Acquiror does not expect to receive all or any portion of financing proceeds on the terms, in the manner or from the applicable PIPE Investors as contemplated by the Subscription Agreements.
Acceptable Investment The Company has no knowledge of any circumstances or conditions with respect to the Mortgage Loan, the Mortgaged Property, the Mortgagor or the Mortgagor's credit standing that can reasonably be expected to cause private institutional investors to regard the Mortgage Loan as an unacceptable investment, cause the Mortgage Loan to become delinquent, or adversely affect the value or marketability of the Mortgage Loan;
Equity Investment “Equity Investment” shall mean pursuant to IRC § 45D(b)(6) and 26
The Investment Account; Eligible Investments (a) Not later than the Withdrawal Date, the Master Servicer shall withdraw or direct the withdrawal of funds in the Custodial Accounts for P&I, for deposit in the Investment Account, in an amount representing:
(i) Scheduled installments of principal and interest on the Mortgage Loans received or advanced by the applicable Servicers which were due on the related Due Date, net of the Servicing Fees due the applicable Servicers and less any amounts to be withdrawn later by the applicable Servicers from the applicable Buydown Fund Accounts;
(ii) Payoffs and the proceeds of other types of liquidations of the Mortgage Loans received by the applicable Servicer for such Mortgage Loans during the applicable Payoff Period, with interest to the date of Payoff or liquidation less any amounts to be withdrawn later by the applicable Servicers from the applicable Buydown Fund Accounts; and
(iii) Curtailments received by the applicable Servicers in the Prior Period. At its option, the Master Servicer may invest funds withdrawn from the Custodial Accounts for P&I, as well as any Buydown Funds, Insurance Proceeds and Liquidation Proceeds previously received by the Master Servicer (including amounts paid by the Company in respect of any Purchase Obligation or its substitution obligations set forth in Section 2.07 or Section 2.08 or in connection with the exercise of the option to terminate this Agreement pursuant to Section 9.01) for its own account and at its own risk, during any period prior to their deposit in the Certificate Account. Such funds, as well as any funds which were withdrawn from the Custodial Accounts for P&I on or before the Withdrawal Date, but not yet deposited into the Certificate Account, shall immediately be deposited by the Master Servicer with the Investment Depository in an Investment Account in the name of the Master Servicer and the Trust for investment only as set forth in this Section 3.03. The Master Servicer shall bear any and all losses incurred on any investments made with such funds and shall be entitled to retain all gains realized on such investments as additional servicing compensation. Not later than the Business Day prior to the Distribution Date, the Master Servicer shall deposit such funds, net of any gains (except Payoff Earnings) earned thereon, in the Certificate Account.
(b) Funds held in the Investment Account shall be invested in (i) one or more Eligible Investments which shall in no event mature later than the Business Day prior to the related Distribution Date (except if such Eligible Investments are obligations of the Trustee, such Eligible Investments may mature on the Distribution Date), or (ii) such other instruments as shall be required to maintain the Ratings.
Loans, Investments, Etc Each Borrower and each Guarantor shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make, or suffer or permit to exist, any loans or advance money or property to any Person, or any investment in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any Person, or form or acquire any Subsidiaries, or agree to do any of the foregoing, except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments in cash or Cash Equivalents so long as the terms and conditions of Section 5.2 hereof shall have been satisfied with respect to the deposit account or investment account in which such cash or Cash Equivalents are held; provided, however, such cash or Cash Equivalents must be held in a savings or investment account which is subject to Administrative and Collateral Agent’s first priority perfected security interest if any Revolving Loans or Term Loans are then outstanding;
(c) the existing equity investments of each Borrower and each Guarantor as of the date hereof in their respective Subsidiaries, provided, that, no Borrower or Guarantor shall have any obligation to make any other investment in, or loans to, or other payments in respect of, any of such Subsidiaries;
(d) stock or obligations issued to any Borrower or any Guarantor by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to such Borrower or such Guarantor in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, the original of any such stock or instrument having a principal amount in excess of $1,000,000 evidencing such obligations shall be promptly delivered to Administrative and Collateral Agent, upon Administrative and Collateral Agent’s request, together with such stock power, assignment or endorsement by such Borrower or such Guarantor as Administrative and Collateral Agent may request;
(e) obligations of account debtors to any Borrower or any Guarantor arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower or such Guarantor; provided, that, promptly upon the receipt of the original of any such promissory note by such Borrower or such Guarantor having a principal amount in excess of $1,000,000, such promissory note shall be endorsed to the order of Administrative and Collateral Agent by such Borrower or such Guarantor and promptly delivered to Administrative and Collateral Agent as so endorsed;
(f) the loans and advances set forth on Schedule 9.10 hereto; provided, that, as to such loans and advances, (i) Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto and (ii) Borrowers and Guarantors shall furnish to Administrative and Collateral Agent all notices or demands in connection with such loans and advances either received by any Borrower, any Guarantor or on any of their behalf, promptly after the receipt thereof, or sent by any Borrower, any Guarantor or on any of their behalf, concurrently with the sending thereof, as the case may be;
(g) loans and advances by any Borrower or any Guarantor to officers and employees of such Borrower or such Guarantor so long as such loans are made in the ordinary course of such Borrower’s or such Guarantor’s business and with respect to activities arising from such persons employment by such Borrower or such Guarantor;
(h) loans and advances by BlueLinx to BlueLinx Building Products Canada Ltd., a company organized under the laws of British Columbia, not to exceed $10,000,000 in the aggregate at any one time outstanding; and
(i) Permitted Acquisitions; provided, however, in the case of a Permitted Acquisition which is an Asset Acquisition, the assets acquired by any Borrower shall not be included in the calculation of the Borrowing Base until the Administrative and Collateral Agent shall have had the opportunity to perform a field examination and appraisal through its examiners or through representatives that it may retain in order to determine the eligibility of such assets for inclusion in the calculation of the Borrowing Base;
(j) any Borrower may form an Acquisition Subsidiary so long as; (i) Administrative Borrower provides Administrative and Collateral Agent with prior written notice of the formation of any Acquisition Subsidiary; (ii) no Default or Event of Default has occurred and is continuing or would result from the formation of such Acquisition Subsidiary; (iii) Administrative and Collateral Agent, for the ratable benefit of the Lenders and the Bank Product Providers, shall be granted a first priority security interest (subject to the security interests, mortgages, pledges, liens, charges and other encumbrances otherwise permitted under Section 9.8 hereof) in all assets (including any Capital Stock) of such Acquisition Subsidiary and such Borrower shall cause such Acquisition Subsidiary to execute any documents and take all actions that may be required under applicable law or that Administrative and Collateral Agent may reasonably request, in order to grant, preserve, protect and perfect such security interest, all in form and substance satisfactory to Administrative and Collateral Agent; and (iv) either (A) such Borrower shall cause such newly formed Acquisition Subsidiary to execute a (1) general continuing guaranty in favor of Administrative and Collateral Agent, for itself and the ratable benefit of the Lenders and the Bank Product Providers, in form and substance satisfactory to Administrative and Collateral Agent, and (2) a joinder to this Agreement, in form and substance satisfactory to Administrative and Collateral Agent, whereby such newly formed Acquisition Subsidiary acknowledges and agrees that it is a “Guarantor” hereunder; or (B) such newly formed Acquisition Subsidiary shall execute a joinder to this Agreement, in form and substance satisfactory to Administrative and Collateral Agent, whereby such newly formed Acquisition Subsidiary acknowledges and agrees that it is a “Borrower” hereunder subject to the terms hereunder and subject to such newly formed Acquisition Subsidiary and Borrowers executing such documentation requested by Administrative Agent in its reasonable discretion.
Eligible Investments 19 ERISA .....................................................................................20
Investments No more than 45% of the “value” (as defined in Section 2(a)(41) of the Investment Company Act of 1940, as amended (“Investment Company Act”)) of the Company’s total assets consist of, and no more than 45% of the Company’s net income after taxes is derived from, securities other than “Government Securities” (as defined in Section 2(a)(16) of the Investment Company Act) or money market funds meeting the conditions of Rule 2a-7 of the Investment Company Act.
Permitted Investments At any time, any one or more of the following obligations and securities:
Independent Investment No Purchaser has agreed to act with any other Purchaser for the purpose of acquiring, holding, voting or disposing of the Securities purchased hereunder for purposes of Section 13(d) under the Exchange Act, and each Purchaser is acting independently with respect to its investment in the Securities.
