Investment Policies The Borrower shall at all times be in compliance in all material respects with its Investment Policies (after giving effect to any Permitted Policy Amendments).
Credit and Collection Policies Comply in all material respects with the Credit and Collection Policy in regard to each Pool Receivable and the related Contract.
Investments; Acquisitions No Loan Party will, nor will it permit any of its Restricted Subsidiaries to, directly or indirectly, make or own any Investment in any other Person, including any Joint Venture, or acquire, by purchase or otherwise, all or substantially all the business, property or fixed assets of, or Capital Stock of any other Person, or any division or line of business of any other Person except: (a) Company and the Restricted Subsidiaries may make and own Investments in Cash and Cash Equivalents; (b) Loan Parties and their Restricted Subsidiaries may continue to own the Investments owned by them as of the Effective Date in any Loan Party and their Restricted Subsidiaries, Loan Parties may make and own additional equity Investments in other Loan Parties and Non-Loan Parties may make and own additional equity Investments in other Non-Loan Parties; (c) Loan Parties and their Restricted Subsidiaries may make intercompany loans to the extent permitted under Section 6.1(e); (d) Company and the Restricted Subsidiaries may make Consolidated Capital Expenditures; (e) Company and the Restricted Subsidiaries may continue to own the Investments owned by them and described in Schedule 6.3 annexed hereto; (f) Parent and Company may acquire and hold obligations of one or more Officers or other employees of Company, Parent or its Restricted Subsidiaries in connection with such Officers’ or employees’ acquisition of shares of Company’s Capital Stock, so long as no Cash is actually advanced by Company, Parent or any of its Restricted Subsidiaries to such Officers or employees in connection with the acquisition of any such obligations; (g) Company and the Restricted Subsidiaries may make and own Investments constituting non-Cash proceeds of sales, transfers and other dispositions of property to the extent permitted by Section 6.7; (h) Company and the Restricted Subsidiaries may acquire Securities in connection with the satisfaction or enforcement of Indebtedness or claims due or owing to Company or any of the Restricted Subsidiaries or as security for any such Indebtedness or claim; (i) Company and the Restricted Subsidiaries may make any Restricted Junior Payment expressly permitted by Section 6.5 (it being understood that any such Restricted Junior Payment may be made in the form of an intercompany loan or advance); (j) Company and the Restricted Subsidiaries may acquire Investments (including debt obligations) received in the ordinary course of business by Company or any of the Restricted Subsidiaries in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising out of the ordinary course of business; (k) Company and the Restricted Subsidiaries may acquire Investments of any Person in existence at the time such Person becomes a Restricted Subsidiary pursuant to a transaction expressly permitted by any other paragraph of this Section; provided that such Investment was not made in connection with or anticipation of such Person becoming a Restricted Subsidiary; (l) Company and the Restricted Subsidiaries may make or continue to hold Investments resulting from deposits referred to in paragraph (c) of the definition of “Permitted Encumbrances” and clause (viii) of Section 6.2(a); (m) Company may perform its obligations under and in accordance with the Conveyance of Undivided Mineral Interest, the Sand Purchase Documents and Natural Gas Hedging Agreements; provided that all such Natural Gas Hedging Agreements shall be entered into to manage (in the good faith business judgment of Company) risks of fluctuations in the price or availability of natural gas to which Company and the Restricted Subsidiaries are exposed in the conduct of their business and the management of their liabilities; (n) Loan Parties may make and hold loans and advances to their employees in an aggregate amount not to exceed the greater of (i) $2,500,000 and (ii) 0.12% of Consolidated Tangible Assets as of the most recently ended Fiscal Quarter at any time outstanding, provided that such loan or advance is not made in material violation of any law; (o) Company and the Restricted Subsidiaries may acquire (in one transaction or a series of related transactions) (i) the assets or the outstanding voting stock or economic interests of any Person, (ii) any division, line of business or other business unit of any Person, or (iii) Capital Stock of a Joint Venture constituting a majority of the Capital Stock of such Joint Venture (such Person or such division, line of business or other business unit of such Person or such Joint Venture shall be referred to herein as the “Target”), in each case that is a type of business (or assets used in a type of business) permitted to be engaged in by the Loan Parties pursuant to the terms hereof, so long as (A) no Event of Default shall then exist or would exist immediately after giving effect thereto other than for Limited Condition Investments in which case no Event of Default shall exit at the time the relevant acquisition agreement is entered into, (B) to the extent required by Section 5.9 and Section 5.10, Collateral Agent, on behalf of Secured Parties, shall have received (or shall receive in connection with the closing of such acquisition) a perfected security interest in all property (including Capital Stock) acquired with respect to the Target described in the applicable forms of Collateral Documents, subject to Liens permitted under Section 6.2, and the Target, if a Person, shall have executed a counterpart of the Subsidiary Guaranty and Pledge and Security Agreement, (C) the aggregate consideration (including without limitation earn out obligations (to be calculated in accordance with GAAP as the estimated amount thereof on the closing date for any acquisition, which determination shall be made on the date the definitive documentation for such acquisition is entered into), deferred compensation and the amount of Indebtedness and other liabilities (other than working capital liabilities) assumed by Loan Parties, but excluding equity consideration, consideration paid from the proceeds of equity of Parent or capital contributions made to Parent and non-competition arrangements) paid by Loan Parties to acquire Capital Stock of Joint Ventures in respect of which Collateral Agent, on behalf of Secured Parties, shall not have received a perfected security interest and guarantees reasonably satisfactory to Administrative Agent shall not exceed the greater of (x) $100,000,000 and (y) 4.7% of Consolidated Tangible Assets as of the most recently ended Fiscal Quarter, (D) for any such acquisitions Company shall have provided financial statements for any Target acquired in any such acquisition for the last Fiscal Year of such Target (to the extent available to Company), and (E) in the case of the acquisition of a Person, such Person shall become a wholly-owned the Restricted Subsidiary of a Loan Party; (p) Company and its Domestic Subsidiaries that are Restricted Subsidiaries may make and own Investments in Foreign Subsidiaries in an aggregate amount not to exceed in the aggregate at any time $25,000,000 plus the then-applicable Available Amount; and (q) in addition to Investments otherwise expressly permitted by this Section, Company and the Restricted Subsidiaries may make Investments not exceeding in the aggregate at any time $25,000,000; (r) Foreign Subsidiaries that are Restricted Subsidiaries may make and own Investments in other Foreign Subsidiaries that are Restricted Subsidiaries; (s) in addition to Investments otherwise expressly permitted by this Section, Company and the Restricted Subsidiaries may make additional Investments under Section 6.3(o), Section 6.3(p) and Section 6.3(q) in an aggregate amount not to exceed $25,000,000 at any time, so long as (i) no Potential Event of Default or Event of Default shall have occurred and be continuing and (ii) any such Investments in Non-Loan Parties does not exceed $10,000,000 in the aggregate at any time; (t) the acquisition by Parent, Company or any Restricted Subsidiary of Company of Repurchase Offer Loans; and (u) Parent and its Restricted Subsidiaries may make NMTC Investments; provided that the aggregate amount of NMTC Investments shall not exceed $60,000.000. Notwithstanding anything herein, Investments made after the Effective Date by any Loan Party or Restricted Subsidiary in a Non-Loan Party otherwise permitted by Section 6.3, will not be permitted if, immediately after giving effect thereto, the aggregate amount of such Investments together with any Restricted Junior Payments made after the Effective Date by any Loan Party or Restricted Subsidiary in a Non-Loan Party otherwise permitted by Section 6.5 during the term of the Loans is more than the greater of $100,000,000 and 5% of Consolidated Tangible Assets as of the most recently ended Fiscal Quarter.
Change in Business or Credit and Collection Policy The Seller will not make any change in the character of its business or in the Credit and Collection Policy that would, in either case, materially adversely affect the collectibility of the Receivables Pool or the ability of the Seller to perform its obligations under this Agreement.
Capitalization; Governing Documents As of the date of this Agreement, the authorized capital stock of the Company consists of: 10,000,000,000 shares of Common Stock, of which 4,005,718,437 shares are issued and outstanding; and 10,000,000 shares of preferred stock, of which 1,000 shares of Series A Preferred Stock are issued and outstanding, 100,000 shares of Series B Preferred Stock are issued and outstanding and 100,000 shares of Series D Preferred Stock are issued and outstanding. All of such outstanding shares of capital stock of the Company, the Commitment Shares and the Conversion Shares are, or upon issuance will be, duly authorized, validly issued, fully paid and non-assessable. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the effective date of this Agreement, other than as publicly announced prior to such date and reflected in the Disclosure Documents (defined below) of the Company (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of any of the Securities. The Company has furnished to the Buyer true and correct copies of the Company’s Articles of Incorporation as in effect on the date hereof (“Articles of Incorporation”), the Company’s Bylaws, as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into or exercisable for Common Stock of the Company and the material rights of the holders thereof in respect thereto.
Investments and Acquisitions Neither the Company nor any of its Subsidiaries shall have outstanding, acquire, commit itself to acquire or hold any Investment (including any Investment consisting of the acquisition of any business) (or become contractually committed to do so) except for the following: (a) Investments of the Company and its Subsidiaries in Wholly Owned Subsidiaries (a) which are domestic Subsidiaries as of the date of this Agreement or (b) which become domestic Wholly Owned Subsidiaries after the Closing Date and become Guarantors to the extent required by Section 10.09; provided, however, that the aggregate book value of all assets (other than intercompany obligations) owned by Immaterial Subsidiaries shall not exceed $10,000,000. (b) Intercompany loans and advances from any Subsidiary to the Company or any Guarantor that, in the case of loans or advances from Foreign Subsidiaries, are subordinated to the Obligations in accordance with the Foreign Subsidiary Subordination Agreement. (c) Investments in Cash Equivalents. (d) Guarantees permitted by Section 6.06. (e) So long as immediately before and after giving effect thereto no Default exists, and so long as the Company (if the Company is party thereto) or a Guarantor (if the Company is not party thereto) is the surviving entity, the Company and its Subsidiaries may acquire another entity in the same line of business as the Company as described in Section 6.02(a) if: (i) at all times when the Consolidated Leverage Ratio is greater than 2.50 for the most recent period of four consecutive fiscal quarters (calculated on a pro forma basis giving effect to the proposed acquisition as if such acquisition had been consummated at the beginning of such period) for which financial reports have been (or are required to have been) furnished to the Lenders in accordance with Sections 6.04(a) or 6.04(b), the purchase price for all such acquisitions permitted pursuant to this clause (e)(i) does not exceed, except with the consent of the Required Lenders, $100,000,000 in cash (excluding consideration consisting of Capital Stock, the proceeds of the issuance of Capital Stock or Subordinated Indebtedness) in the aggregate over the term of the Agreement; (ii) at all times when the Consolidated Leverage Ratio is less than or equal to 2.50 for the most recent period of four consecutive fiscal quarters (calculated on a pro forma basis giving effect to the proposed acquisition as if such acquisition had been consummated at the beginning of such period) for which financial reports have been (or are required to have been) furnished to the Lenders in accordance with Sections 6.04(a) or 6.04(b), the Company and its Subsidiaries may make unlimited acquisitions; provided, however that in the event a transaction permitted pursuant to this clause (e)(ii) would, on a pro forma basis after giving effect thereto, cause the Consolidated Leverage Ratio to exceed 2.50, the portion of the cash purchase price with respect to such transaction attributed to causing the Consolidated Leverage Ratio to be greater than 2.50 shall only be permitted to be paid to the extent the Company has sufficient availability in the $100,000,000 basket set forth in clause (e)(i) to take into account such excess amount; provided, further, that with respect to any acquisition permitted pursuant to this Section 6.08(e)(ii), (i) the acquisition must be approved by the target entity’s board of directors, (ii) the Company must be in compliance with the Computation Covenants immediately after giving effect to such acquisition, (iii) the acquired entity must not have any environmental liabilities which, after giving effect to such acquisition, would reasonably be expected to result in a Material Adverse Effect and (iv) any Subsidiary acquired under this Section 6.08(e) (other than (a) a Foreign Subsidiary or (b) any Immaterial Subsidiary if the aggregate book value of the assets (other than intercompany obligations) of all Immaterial Subsidiaries acquired under this Section 6.08(e) since the Closing Date does not exceed $10,000,000) shall guarantee the Obligations, as contemplated by Section 10.09. (f) So long as immediately before and after giving effect thereto no Default exists, the Company and its Subsidiaries may make (i) Investments in Unrestricted Affiliates engaged in businesses contemplated by Section 6.02(a) and (ii) Investments consisting of contributions of Property to Unrestricted Affiliates, in an aggregate amount for all such Investments permitted pursuant to this clause (f) (calculated at net book value at the time of such Investment), when taken together with the aggregate amount of all Dispositions permitted pursuant to Section 6.10(e), not to exceed $100,000,000. (g) Loans or advances to employees of the Company in an amount not to exceed (i) $1,000,000 in the aggregate outstanding at any time for the purchase of capital stock of the Company and (ii) $5,000,000 in the aggregate outstanding at any time for all other purposes. (h) So long as immediately before and after giving effect thereto no Default exists, Investments of the Company and its Subsidiaries in foreign Wholly Owned Subsidiaries; provided, however, that other than with respect to Investments outstanding as of the Closing Date as described on Schedule 6.08(h), (i) such Investments shall not involve the transfer of substantial noncash assets from the Company and its domestic Subsidiaries to its Foreign Subsidiaries other than up to $35,000,000 in book value of foreign patents and foreign trademarks; and (ii) net cash Investments of the Company and its domestic Subsidiaries in Foreign Subsidiaries made pursuant to this Section 6.08(h) at any one time outstanding shall not exceed $125,000,000 in the aggregate. (i) So long as immediately before and after giving effect thereto no Default exists, and provided that the Company complies with Section 10.09, the Company may create a Wholly Owned Subsidiary that constitutes a holding company for the Company’s European Subsidiaries.
Mergers, Acquisitions, Etc Merge or consolidate with any other entity or acquire all or a material part of the assets of any person or entity, or form or create any new Subsidiary or affiliate, or commence operations under any other name, organization, or entity, including any joint venture.
Portfolio Transactions The Manager is authorized to select the brokers or dealers that will execute the purchases and sales of portfolio securities for the Portfolio and is directed to use its best efforts to obtain the best available prices and most favorable executions, except as prescribed herein. It is understood that the Manager will not be deemed to have acted unlawfully, or to have breached a fiduciary duty to the Fund or to the Portfolio, or be in breach of any obligation owing to the Fund or to the Portfolio under this Agreement, or otherwise, solely by reason of its having caused the Portfolio to pay a member of a securities exchange, a broker, or a dealer a commission for effecting a securities transaction for the Portfolio in excess of the amount of commission another member of an exchange, broker, or dealer would have charged if the Manager determines in good faith that the commission paid was reasonable in relation to the brokerage or research services provided by such member, broker, or dealer, viewed in terms of that particular transaction or the Manager’s overall responsibilities with respect to its accounts, including the Fund, as to which it exercises investment discretion. The Manager will promptly communicate to the officers and directors of the Fund such information relating to transactions for the Portfolio as they may reasonably request.
Mergers, Acquisition, Sales, etc The Servicer will not consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, unless the Servicer is the surviving entity and unless: (i) the Servicer has delivered to the Administrative Agent and each Purchaser Agent an Officer’s Certificate and an Opinion of Counsel each stating that any consolidation, merger, conveyance or transfer and such supplemental agreement comply with this Section 5.5 and that all conditions precedent herein provided for relating to such transaction have been complied with and, in the case of the Opinion of Counsel, that such supplemental agreement is legal, valid and binding with respect to the Servicer and such other matters as the Administrative Agent may reasonably request; (ii) the Servicer shall have delivered notice of such consolidation, merger, conveyance or transfer to the Administrative Agent and each Purchaser Agent; (iii) after giving effect thereto, no Termination Event or Servicer Default or event that with notice or lapse of time would constitute either a Termination Event or a Servicer Default shall have occurred; and (iv) the Administrative Agent and each Purchaser Agent have consented in writing to such consolidation, merger, conveyance or transfer.
Credit and Collection Policy The Servicer has complied in all material respects with the Credit and Collection Policy with regard to each Pool Receivable and the related Contracts.
