Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except: (i) Company and its Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days; (ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor; (iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v); (iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8; (v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3; (vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000; (vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments; (viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000; (ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations; (x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7; (xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim; (xii) any transaction permitted by subsections 7.5 or 7.7; (xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business; (xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and (xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.
Appears in 2 contracts
Samples: Credit Agreement (Hexcel Corp /De/), Credit Agreement (Hexcel Corp /De/)
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries (other than Dormant Subsidiaries) may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) (a) Company and its wholly-owned Domestic Subsidiaries (other than Dormant Subsidiaries) may continue to make and own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such additional equity Investments in the form of Indebtedness into Investments in the form of Capital Stock), their respective wholly-owned Domestic Subsidiaries (other than Dormant Subsidiaries) and Company and its (b) Foreign Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantorother Foreign Subsidiaries;
(iii) Company and its Subsidiaries (other than Dormant Subsidiaries) may (a) become liable make Investments in respect the form of Contingent Obligations Indebtedness permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Subsidiaries (other than Dormant Subsidiaries) may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own consummate the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made Acquisition in accordance with the other provisions terms and conditions of this subsection 7.3the Merger Agreement;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets continue to own the Investments owned by them and described in Schedule 7.3 annexed hereto;
(vii) Company and its Subsidiaries (other than Dormant Subsidiaries) may make Permitted Acquisitions (including Capital Stock and including the acquisition of the Capital Stock of Subsidiaries formed in connection with any such acquisitionPermitted Acquisition) for an aggregate a purchase price (determined at the time of purchase thereofincluding all Cash, Securities and Indebtedness (other than Capital Leases) permitted by subsection 7.1(viii)) not in excess to exceed $80,000,000 (plus any Additional Contributions not being utilized by Company or any of $75,000,000 in its Subsidiaries for any individual case other purpose under subsection 7.1, 7.3(ix) or 7.4 which, (provided that such amount may be increased a) when aggregated with any Additional Contributions made for purposes of Permitted Acquisitions permitted by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii7.3(viii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)7.3(xiv), do not exceed $40,000,000 and (b) when aggregated with any Additional Contributions made for purposes of Permitted Acquisitions and other Investments permitted by subsections 7.3(viii) and 7.3(xiv) do not exceed $60,000,000) and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the applicable requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, Subsidiary and (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) Compliance at the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital time of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investmentsacquisition;
(viii) any Foreign Subsidiary of Company and its Subsidiaries may make Permitted Acquisitions (including the acquisition of the Capital Stock of Subsidiaries formed in connection with any such Permitted Acquisition) for a purchase price (including all Cash, Securities and own Indebtedness (other Investments in an aggregate amount than Capital Leases) permitted by subsection 7.1(viii)) not to exceed at $40,000,000 (plus any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s Capital Stock, so long as no cash is actually advanced Additional Contributions not being utilized by Company or any of its Subsidiaries for any other purpose under subsection 7.1, 7.3(ix) or 7.4 (other than Additional Contributions loaned to a Foreign Subsidiary under subsection 7.1(iv), and the corresponding Investment in respect of such officers loan, for the purpose of (a) Permitted Acquisitions under subsection 7.3(viii), (b) Permitted Acquisitions or employees in connection Investments under subsection 7.3(xiv) or (c) satisfying Contingent Obligations under subsection 7.4(ix)) which, (a) when aggregated with any Additional Contributions made for purposes of Permitted Acquisitions permitted by subsections 7.3(vii) and (xiv), do not exceed $40,000,000 and (b) when aggregated with any Additional Contributions made for purposes of Permitted Acquisitions and other Investments permitted by subsections 7.3(vii) and 7.3(xiv) do not exceed $60,000,000) and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or after giving effect thereto and (b) Company shall be in Pro Forma Compliance at the time of such acquisition;
(ix) Company and its wholly-owned Domestic Subsidiaries (other than Dormant Subsidiaries) may make additional Investments in their respective Foreign Subsidiaries; provided that the aggregate amount (without duplication) of all such Investments under this subsection 7.3(ix), all Indebtedness of Foreign Subsidiaries to Company or any Subsidiary Guarantor permitted by subsection 7.1(iv) and all Contingent Obligations permitted by subsection 7.4(ix) does not exceed $40,000,000 (plus any Additional Contributions not being utilized by Company or any of its Subsidiaries for any other purpose under this subsection 7.3 or subsection 7.1 or 7.4 (other than Additional Contributions loaned to a Foreign Subsidiary under subsection 7.1(iv), and the corresponding Investment in respect of such obligationsloan, for the purpose of (a) Permitted Acquisitions under subsection (viii), (b) Permitted Acquisitions or other Investments under subsection 7.3(xiv) or (c) satisfying Contingent Obligations under subsection 7.4(ix))) at any time outstanding;
(x) Company and its Subsidiaries (other than Dormant Subsidiaries) may receive and hold promissory notes and other non-cash Cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries (other than Dormant Subsidiaries) may acquire and hold Securities or Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries Subsidiaries, including Securities or Investments received in connection with the bankruptcy, insolvency or reorganization of the Person obligated on such Indebtedness or claim, or as security for any such Indebtedness or claim;
(xii) Company and its Subsidiaries (other than Dormant Subsidiaries) may make loans (financing equipment sold by Company and its Subsidiaries) or equipment leases to customers doing business with Company and its Subsidiaries in an aggregate principal amount not to exceed $40,000,000 at any transaction permitted by subsections 7.5 or 7.7time outstanding (with the principal amount of such leases to be deemed to be equal to the discounted present value, at a market rate of interest, of the remaining rental payments plus any residual value of the leased equipment as shown on Company’s financial statements);
(xiii) deposits, prepayments Company and extensions its Subsidiaries (other than Dormant Subsidiaries) may make loans to customers doing business with Company and its Subsidiaries in settlement of trade credit accounts receivable owing to Company or any of its Subsidiaries from such customer in the ordinary course of businessan aggregate principal amount not to exceed $15,000,000 at any time outstanding;
(xiv) Company and its Subsidiaries (other than Dormant Subsidiaries) may make Permitted Acquisitions and make and own other Investments in an aggregate amount (without duplication) not to exceed $20,000,000 at any time outstanding (plus (a) in the Investments described case of Permitted Acquisitions, any Additional Contributions not being utilized by Company or any of its Subsidiaries for any other purpose under subsection 7.1, 7.3(ix) or 7.4 (other than Additional Contributions loaned to a Foreign Subsidiary under subsection 7.1(iv), and the corresponding Investment in Schedule 7.3B annexed hereto; provided that the aggregate fair market value respect of such loan, for the purpose of (1) Permitted Acquisitions or other Investments under subsection 7.3(viii) or 7.3(xiv) or (as determined as 2) satisfying Contingent Obligations under subsection 7.4(ix)), which, when aggregated with any Additional Contributions made for purposes of the date each such Investment is madePermitted Acquisitions permitted by subsection 7.3(vii) shall or 7.3(viii), do not exceed $42,000,00040,000,000 at any time outstanding and (b) in the case of other Investments, any Additional Contributions not being utilized by Company and its Subsidiaries for any other purpose under subsection 7.1 , 7.3(ix) or 7.4 (other than Additional Contributions loaned to a Foreign Subsidiary under subsection 7.1(iv)), and the corresponding Investment in respect of such loan, for the purpose of (1) Permitted Acquisitions or other Investments under subsection 7.3(viii) or 7.3(xiv) or (2) satisfying Contingent Obligations under subsection 7.4(ix)), which, when aggregated with any Additional Contributions made for purposes of Permitted Acquisitions permitted by subsection 7.3(vii) or 7.3(viii), do not exceed $60,000,000 at any time outstanding); and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective and its Subsidiaries (1other than Dormant Subsidiaries) consisting of Capital Stock and/or intercompany notes made may make loans and advances to achieve cash repatriation strategies officers, directors or (2) the consideration employees for which is the cancellation or business-related travel expenses, moving expenses and other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1)similar expenses, in each case so long as incurred in the net cash Investment by Company ordinary course of business or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together consistent with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timepast practice.
Appears in 2 contracts
Samples: Credit Agreement (United Online Inc), Credit Agreement (United Online Inc)
Investments; Acquisitions. Holdings and Company shall not, and shall not permit any of its their Subsidiaries to, directly or indirectly, make or own any Investment in any 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 of, any Person, or any division or line of business of any Person except:
(i) Company Holdings and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) the Loan Parties may make and own Investments in Company and the Guarantors may make and own Investments in Company and other Guarantors and Subsidiaries that are not Guarantors may make and own Investments in Company and Subsidiaries that are not Guarantors;
(iii) Company and its Subsidiaries may make intercompany loans and advances to the extent permitted under subsections 7.1(iii) and 7.1(vi);
(iv) Holdings and its Subsidiaries may consummate the Merger and make related Investments in accordance with the terms and conditions of the Merger Agreement;
(v) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by the First Lien Credit Agreement;
(vi) Company and its Subsidiaries may continue to own the Investments owned by them as of and described in Schedule 7.3 annexed hereto, including any modification, replacement, renewal or extension thereof which does not increase the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantoramount thereof;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(ivvii) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereofPermitted Acquisitions; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall be in Pro Forma Compliance (as defined in the First Lien Credit Agreement as in effect on the Closing Date without giving effect to any waiver by lenders under the First Lien Credit Agreement of covenants in the First Lien Credit Agreement on which Pro Forma Compliance is based) after giving effect thereto, (c) Company and Holdings shall, and shall cause its their Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations Subsidiary and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any the aggregate fair market value of all direct and indirect Investments in Persons that do not become Guarantors resulting from all such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired not exceed in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than aggregate $25,000,00012,500,000;
(viiviii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries the Subsidiary Guarantors may make additional and own equity Investments in any Subsidiary that is not a Subsidiary Guarantortheir respective wholly owned Foreign Subsidiaries; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor constituting equity Investments made from and after the Closing Date minus the amount of all cash dividends, distributions and other payments actually received by Company or any of the Subsidiary Guarantors in respect of such equity investments after the Closing Date (Athe “Net Foreign Equity Investment Amount”) Investments made in such Subsidiary that is shall not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
exceed the excess of (viiix) Company and its Subsidiaries may make and own other Investments in an $12,500,000, minus (y) the aggregate principal amount not to exceed at any time $25,000,000of Indebtedness outstanding under subsection 7.1(vi);
(ix) Holdings and Company may acquire and hold obligations of one or more officers or other employees of Company Holdings or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s its Capital Stock, so long as no cash is actually advanced by Company Holdings or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash noncash consideration received in connection with any Asset Sale permitted by subsection 7.77.6;
(xi) Company and its Subsidiaries the Subsidiary Guarantors may acquire make and hold own other Investments in Securities in connection with an aggregate amount not to exceed at any time (x) $18,000,000 plus (y) the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claimSpecified Equity Amount;
(xii) any transaction permitted by subsections 7.5 Company and its Subsidiaries may make and own Investments in connection with the workout, bankruptcy or 7.7reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(xiii) depositsCompany and its Subsidiaries may make and own Investments consisting of lease, prepayments utility and other deposits or advances in the ordinary course of business;
(xiv) [Reserved];
(xv) Company and its Subsidiaries may make and own Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business;
(xivxvi) Holdings and its Subsidiaries may enter into Hedge Agreements as permitted under subsection 7.1(xi);
(xvii) Company and its Subsidiaries may make and own Investments in the ordinary course of business consisting of indorsements for collection or deposit;
(xviii) Holdings and its Subsidiaries may make and own Investments described consisting of loans and advances of payroll payments to employees in Schedule 7.3B annexed hereto; provided that the aggregate fair market value ordinary course of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000business; and
(xvxix) Investments by Company and its Subsidiaries may acquire and hold any Investment existing at the time a Person becomes a Subsidiary of Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1subsection 7.6(viii), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (SafeNet Holding Corp), Second Lien Credit Agreement (SafeNet Holding Corp)
Investments; Acquisitions. Company shall notNo Loan Party will, and shall not 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:
(ia) Company and its the Restricted Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(iib) Company Loan Parties and its their Restricted Subsidiaries may continue to own the Investments owned by them as of the Closing Effective Date in the Company any Loan Party and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock)their Restricted Subsidiaries, and Company and its Subsidiaries Loan Parties may make and own additional equity Investments in the Company or any Subsidiary Guarantorother Loan Parties and Non-Loan Parties may make and own additional equity Investments in other Non-Loan Parties;
(iiic) Company Loan Parties and its their Restricted Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(vSection 6.1(e);
(ivd) Company and its the Restricted Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8Expenditures;
(ve) Company and its the Restricted Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 6.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vif) Company Parent and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers Officers or other employees of Company Company, Parent or its Restricted Subsidiaries in connection with such officersOfficers’ or employees’ acquisition of shares of Company’s Capital Stock, so long as no cash Cash is actually advanced by Company Company, Parent or any of its Restricted Subsidiaries to such officers Officers or employees in connection with the acquisition of any such obligations;
(xg) Company and its the Restricted Subsidiaries may receive make and hold promissory notes own Investments constituting non-Cash proceeds of sales, transfers and other non-cash consideration received in connection with any Asset Sale dispositions of property to the extent permitted by subsection 7.7Section 6.7;
(xih) Company and its the Restricted Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its the Restricted Subsidiaries or as security for any such Indebtedness or claim;
(xiii) Company and the Restricted Subsidiaries may make any transaction Restricted Junior Payment expressly permitted by subsections 7.5 Section 6.5 (it being understood that any such Restricted Junior Payment may be made in the form of an intercompany loan or 7.7advance);
(xiiij) depositsCompany 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, prepayments and extensions other disputes with, customers and suppliers arising out of trade credit in the ordinary course of business;
(xivk) 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 described otherwise expressly permitted by this Section, Company and the Restricted Subsidiaries may make Investments not exceeding in Schedule 7.3B annexed heretothe 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 fair market value amount of such NMTC Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) 60,000.000. Notwithstanding anything herein, Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following 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 making aggregate amount of such cash Investment and (b) in any event exceed $50,000,000 (taken Investments together with any Restricted Junior Payments made after the amount Effective Date by any Loan Party or Restricted Subsidiary in a Non-Loan Party otherwise permitted by Section 6.5 during the term of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timethe Loans is more than the greater of $100,000,000 and 5% of Consolidated Tangible Assets as of the most recently ended Fiscal Quarter.
Appears in 2 contracts
Samples: Credit Agreement (U.S. Silica Holdings, Inc.), Credit Agreement (U.S. Silica Holdings, Inc.)
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Equity Interests of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments wholly-owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Domestic Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Subsidiaries may (x) make Consolidated Capital Expenditures Expenditures, (y) enter into any Converted Capital Lease otherwise permitted by subsection 7.8pursuant to this Agreement and (z) exercise a purchase option under any lease with respect to any existing Facility, to the extent otherwise permitted under this Agreement;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company and its Domestic Subsidiaries may (x) acquire any business, division, line or assets (including Capital Stock Equity Interests and including Capital Stock Equity Interests of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), (y) incur construction and continue to own development costs and expenses in connection with the construction and development of express recovery or similar units or (z) incur construction and development costs and expenses in connection with the construction and development of additional beds at existing Facilities or the construction and development of new Facilities for a total consideration (including any Indebtedness that is assumed or repaid by Company or any of its Subsidiaries in connection with such assets after the acquisition thereofacquisition); provided that (ai) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition acquisition, development or construction occurs or immediately after giving effect thereto, (bii) Company shall, and shall cause its Domestic Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiaryacquisition, development or construction, (ciii) all representations at the time of and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, development or construction, Company and its Subsidiaries shall be is in Pro Forma Compliance, Compliance with (a) the financial covenants contained in subsection 7.6 and (eb) the amount maximum Consolidated Leverage Ratio permitted by subsection 7.6B less 0.25x, (iv) for any acquisition, development or construction with a value in excess of $7,500,000, prior to the consummation of such acquisition, development or construction, Company shall have delivered written notice thereof to Administrative Agent (which notice shall include a reasonably detailed description of such proposed acquisition, development or construction), together with the most recent audited financial statements, if available, of the seller or entity to be acquired and (1v) for any acquisition, development or construction with a value in excess of $5,000,000, Company shall have delivered projections updating the Revolving Loan Commitment Amount exceeds (2) Financial Plans delivered pursuant to subsection 6.1(xi), which projections shall reflect Pro Forma Compliance by Company with the Total Utilization financial covenants contained in subsection 7.6 as of Revolving Loan Commitments the last day of each of the four Fiscal Quarters ending immediately after giving effect to such acquisition and any related transactionsacquisition, is not less than $25,000,000development or construction;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Domestic Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ixviii) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s Capital StockEquity Interests, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xix) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xix) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;; and
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xivxi) Company and its Subsidiaries may make and own equity and debt Investments in domestic Joint Ventures in an aggregate amount at any time outstanding not to exceed $30,000,000 (it being agreed the Investments described amount of any investment “outstanding” shall not be reduced by any amount received in Schedule 7.3B annexed heretorespect of such investment that is included in Consolidated EBITDA for any period); provided that and
(xii) In connection with the aggregate consummation of a HUD Financing, Company may from time to time designate by written notice to Administrative Agent one or more Domestic Subsidiaries as HUD Subsidiaries, so long as (A) the fair market value of such Investments all Facilities on an enterprise basis (as determined as of evidenced by the date each such Investment is madewritten appraisals obtained in connection with the related HUD Financings) shall so designated does not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor 50,000,000 in the aggregate in any Fiscal Year (such amount for each Fiscal Year commencing on or after January 1, 2011, to be increased by the amount, if positive, by which the amount permitted to be designated under this subsection (xii) in the immediately preceding Fiscal Year exceeds the fair market value on an enterprise basis of their respective Subsidiaries the Facilities so designated in the immediately preceding Fiscal Year) and (B) on a Pro Forma Basis, the ratio of (1) consisting HUD Asset Pool Value to the aggregate principal amount of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or such HUD Financing is no greater than (2) Remaining Asset Pool Value to Total Credit Agreement Indebtedness, as certified by an Officer of Company at the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making time of such cash Investment and (b) designation with calculations of such ratios in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timereasonable detail.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Skilled Healthcare Group, Inc.), Amendment and Restatement Agreement (Skilled Healthcare Group, Inc.)
Investments; Acquisitions. Holdings and Company shall not, and shall not permit any of its their Subsidiaries to, directly or indirectly, make or own any Investment in any 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 of, any Person, or any division or line of business of any Person except:
(i) Company Holdings and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) the Loan Parties may make and own Investments in Company and the Guarantors may make and own Investments in Company and other Guarantors and Subsidiaries that are not Guarantors may make and own Investments in Company and Subsidiaries that are not Guarantors;
(iii) Company and its Subsidiaries may make intercompany loans and advances to the extent permitted under subsections 7.1(iii) and 7.1(vi);
(iv) Holdings and its Subsidiaries may consummate the Merger and make related Investments in accordance with the terms and conditions of the Merger Agreement;
(v) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.7;
(vi) Company and its Subsidiaries may continue to own the Investments owned by them as of and described in Schedule 7.3 annexed hereto, including any modification, replacement, renewal or extension thereof which does not increase the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantoramount thereof;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(ivvii) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereofPermitted Acquisitions; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall be in Pro Forma Compliance after giving effect thereto, (c) Company and Holdings shall, and shall cause its their Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations Subsidiary and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any the aggregate fair market value of all direct and indirect Investments in Persons that do not become Guarantors resulting from all such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired not exceed in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than aggregate $25,000,00010,000,000;
(viiviii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries the Subsidiary Guarantors may make additional and own equity Investments in any Subsidiary that is not a Subsidiary Guarantortheir respective wholly owned Foreign Subsidiaries; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor constituting equity Investments made from and after the Closing Date minus the amount of all cash dividends, distributions and other payments actually received by Company or any of the Subsidiary Guarantors in respect of such equity investments after the Closing Date (Athe “Net Foreign Equity Investment Amount”) Investments made in such Subsidiary that is shall not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
exceed the excess of (viiix) Company and its Subsidiaries may make and own other Investments in an $10,000,000, minus (y) the aggregate principal amount not to exceed at any time $25,000,000of Indebtedness outstanding under subsection 7.1(vi);
(ix) Holdings and Company may acquire and hold obligations of one or more officers or other employees of Company Holdings or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s its Capital Stock, so long as no cash is actually advanced by Company Holdings or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash noncash consideration received in connection with any Asset Sale permitted by subsection 7.77.6;
(xi) Company and its Subsidiaries the Subsidiary Guarantors may acquire make and hold own other Investments in Securities in connection with an aggregate amount not to exceed at any time (x) $15,000,000 plus (y) the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claimSpecified Equity Amount;
(xii) any transaction permitted by subsections 7.5 Company and its Subsidiaries may make and own Investments in connection with the workout, bankruptcy or 7.7reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(xiii) depositsCompany and its Subsidiaries may make and own Investments consisting of lease, prepayments utility and other deposits or advances in the ordinary course of business;
(xiv) [Reserved];
(xv) Company and its Subsidiaries may make and own Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business;
(xivxvi) Holdings and its Subsidiaries may enter into Hedge Agreements as permitted under subsection 7.01(xi);
(xvii) Company and its Subsidiaries may make and own Investments in the ordinary course of business consisting of indorsements for collection or deposit;
(xviii) Holdings and its Subsidiaries may make and own Investments described consisting of loans and advances of payroll payments to employees in Schedule 7.3B annexed hereto; provided that the aggregate fair market value ordinary course of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000business; and
(xvxix) Investments by Company and its Subsidiaries may acquire and hold any Investment existing at the time a Person becomes a Subsidiary of Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1subsection 7.6(viii), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.
Appears in 2 contracts
Samples: First Lien Credit Agreement (SafeNet Holding Corp), First Lien Credit Agreement (SafeNet Holding Corp)
Investments; Acquisitions. Company and Borrowers shall not, and shall not permit any of its or their Restricted Subsidiaries to, directly or indirectly, make or own any Investment in any Person, including any Joint Venture, Person or acquire, by purchase or otherwise, all or substantially all the business, property or fixed assets of, or Capital Stock or other ownership interest of any Person, or any division or line of business of any Person (each such acquisition, an “Acquisition”) except:
(i) Company and its Restricted Domestic Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and in Cash Equivalents permitted and the Restricted Foreign Subsidiaries may make and own Investments in Cash Equivalents and short term investments similar to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysCash Equivalents customarily used in the countries in which they are located;
(ii) Company and its Restricted Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Restricted Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock)Company, and Company and its Restricted Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary GuarantorLoan Parties (other than OI Europe) and Restricted Foreign Subsidiaries that are not Loan Parties may make and own additional equity investments in other non-Loan Parties;
(iii) Company and its Restricted Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(vSection 8.1(iv);
(iv) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted continue to own the Investments owned by subsection 7.8them and described in Schedule 8.3 annexed hereto;
(v) Company and its Restricted Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto make Acquisitions (and Company and its Restricted Domestic Subsidiaries may make incremental Investments contemplated in connection therewithRestricted Foreign Subsidiaries necessary to consummate any such Acquisition) so long as (i) immediately after giving effect to such Acquisition, the Borrowers are in compliance with the financial covenant set forth in Section 9.1 as of the last day of the Fiscal Quarter most recently ended calculated on a Pro Forma Basis after giving effect to such Acquisition, provided, that the determination of compliance for this Section 8.3(v)(i) may be made as of either the signing of the acquisition or purchase agreement or the closing of such Acquisition at the Borrowers’ option; and any extension or renewal thereof; provided that any additional Investments made (ii) with respect thereto shall be permitted only to any Acquisition for which the extent such Investments are described on Schedule 7.3A or made purchase consideration is in accordance with excess of $100,000,000, the other provisions of this subsection 7.3Total Available Revolving Commitment is at least $150,000,000;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Restricted Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investmentstheir respective Restricted Foreign Subsidiaries;
(viiivii) Company and its Restricted Subsidiaries may make and own other Investments arising in an aggregate amount not to exceed connection with Commodities Agreements entered into in accordance with current industry practice (at the time of making any time $25,000,000such Investment) or the past practices of Company and its Restricted Subsidiaries;
(ixviii) Company may acquire and hold obligations of one or more officers or other employees of Company or its Restricted Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s Capital StockHoldings’ common stock, so long as no cash is actually advanced by Company or any of its Restricted Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xix) Company and its Restricted Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale or other sales of assets permitted by subsection 7.7Section 8.7;
(xix) Company and its Restricted Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Restricted Subsidiaries or as security for any such Indebtedness or claim;
(xi) In addition to Investments permitted by the other clauses of this Section, Company and its Restricted Subsidiaries may make and own other Investments (including Investments in Unrestricted Subsidiaries) after the Closing Date in an aggregate amount not to exceed an amount equal to (a) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from December 31, 2004 to the end of Company’s most recently ended Fiscal Quarter for which internal financial statements are available at the time of such Investment (or, if such Consolidated Net Income shall be a deficit, minus 100% of such deficit) (provided that the amount determined under this clause (a) shall never be less than zero) plus (b) the amount of net Cash proceeds contributed to Company by Holdings from issuances of Holdings Common Stock or Permitted Preferred Stock plus (c) $200,000,000 less the aggregate amount of Restricted Payments made as of such date of determination pursuant to Section 8.5(vi);
(xii) other Investments made after the Closing Date not constituting Acquisitions not in excess of $200,000,000 at any transaction permitted by subsections 7.5 or 7.7;time outstanding; and
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Restricted Subsidiaries may make the Investments enter into and consummate transactions described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is madeSections 8.7(i) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xvix)) at any time.
Appears in 2 contracts
Samples: Credit Agreement (Owens-Illinois Group Inc), Credit Agreement (Owens-Illinois Group Inc)
Investments; Acquisitions. Company Borrowers shall not, and shall not permit any of its their respective Subsidiaries to, directly or indirectly, make or own any Investment in any 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 capital stock or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Domestic Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and in Domestic Cash Equivalents and in such investments as are permitted or imposed under the terms of any cash collateral or debt service reserve agreement (including pursuant to be owned by Company the terms of any Project bond indenture) permitted hereunder; and its Domestic Company's Foreign Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysmay make and own Investments in Foreign Cash Equivalents to the extent permitted under subsection 5.10;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries Borrowers may make and own additional equity Investments in other Borrowers, so long as no such Investment shall be made by one Borrower in another Borrower if (a) the Company latter is subject to restrictions of the type described in subsection 6.2D more adverse than restrictions of such type that are applicable to the Borrower making such Investment, or (b) such Investment shall result in the obligee or beneficiary of any Subsidiary GuarantorIndebtedness or Contingent Obligation (other than the Obligations) having greater recourse to assets for the payment or collection of such Indebtedness or Contingent Obligation than such obligee or beneficiary had immediately prior to such Investment;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v6.1(iii);
(iv) Company and its Subsidiaries may make Consolidated Facilities Capital Expenditures permitted by subsection 7.86.6D;
(v) Company and its Subsidiaries may continue to own the Investments owned by them on the Closing Date and described in Schedule 7.3A 6.3(v) annexed hereto hereto;
(and a) Company may make incremental and own Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only consisting of intercompany loans to its Subsidiaries (to the extent such Investments Subsidiaries are described in existence on Schedule 7.3A or made the Closing Date) in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) amount not in excess of $75,000,000 1,000,000 outstanding at any time and (b) Subsidiaries may make and own Investments consisting of intercompany loans to other Subsidiaries (in any individual each case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds Subsidiaries are not in existence on the Closing Date), so long as the proceeds of such loans are applied to increase working capital, capital expenditure, maintenance and payroll requirements in the limit under subsection 7.8)), and continue to own ordinary course of business of such assets after the acquisition thereof; Subsidiaries (provided that (a) no Potential Event the aggregate amount of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, loans outstanding pursuant to this clause (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the not at any time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect theretoexceed $2,000,000), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred Borrowers and is continuing, Company and its their Subsidiaries may make additional own Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount form of all non-cash consideration received in connection with (a) Asset Sales permitted under subsection 6.7(iii) or 6.7(iv) or (b) settlements of disputes, to the extent such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) settlements occur in the aggregate outstanding at any time for all such Investmentsordinary course of business;
(viii) Subject to the Intercreditor Agreement, Borrowers may make payments under the Management Services and Reimbursement Agreement to the extent contractually obligated pursuant to the terms thereof; and
(ix) Company and its Subsidiaries may make and own other Investments consisting of cash equity contributions made after the Closing Date (a) in the aggregate amount of approximately $360,000 (it being understood that such amount is the approximate Dollar equivalent of an estimate as of November 15, 2003 of the required foreign currency contribution, and thus may change based on fluctuations in currency exchange rates) in the Madurai Project, (b) in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit 130,000 in the ordinary course of business;
Samalpatti Project, and (xivc) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the an aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall amount not to exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor 1,600,000 in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1)Trezzo waste-to- energy Project, in each case so long as (1) such contributions are required to be made pursuant to the net cash Investment by terms of a binding Contractual Obligation of Company or such Subsidiary Guarantor and its Subsidiaries in connection therewith does not (a) exceed zero after effect on the tenth day following the making of such cash Investment Closing Date, and (b2) in any event exceed $50,000,000 (taken together with Capital Stock resulting from such contributions and held directly by any Borrower shall be pledged as Collateral under the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeCollateral Documents.
Appears in 2 contracts
Samples: Credit Agreement (Danielson Holding Corp), Credit Agreement (Covanta Energy Corp)
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments wholly-owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Domestic Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries;
(iii) Company and its Domestic Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted (including acquisitions of Xxxx’x Xxxxx restaurants from Xxxx’x Xxxxx franchisees) if no Default or Potential Event of Default exists at the time of or would result after giving effect to any such Consolidated Capital Expenditure; provided that in the case of any acquisition of a Xxxx’x Xxxxx restaurant (a) such restaurant is wholly-owned by Company or a Subsidiary of Company upon consummation of such acquisition and (b) after giving effect to any such acquisition and the related adjustments (on a reasonable and prudent pro forma basis in accordance with the standards set forth under Article 11 of Regulation S-X under the Securities Act) as determined in writing by the chief executive officer or chief financial officer of Company, as if such acquisition had occurred on the first day of the most recent twelve-month period for which Company’s results of operations are available, Company would be in compliance with the covenant set forth in subsection 7.87.6A and the Consolidated Leverage Ratio would be at least 0.25 below the Consolidated Leverage Ratio required as of such date pursuant to subsection 7.6B, and Company has delivered to Administrative Agent an Officer’s Certificate so stating and attaching financial information and calculations in form and substance reasonably satisfactory to Administrative Agent required to confirm such statement;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereofhereto; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;and
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including make acquisitions of all the Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at a Person or substantially all of the time assets of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; a Person provided that (a) such Person is in the same or similar line of business as Company and its Subsidiaries, (b) no Default or Potential Event of Default or Event of Default shall have occurred and be continuing exists at the time such acquisition occurs of or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that would result after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance(c) the sole consideration for such acquisition consists of common stock of Company, (d) the prior effective written consent to or approval of such acquisition from the board of directors or equivalent governing body of such Person is obtained and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to any such acquisition and any the related transactionsadjustments (on a reasonable and prudent pro forma basis in accordance with the standards set forth under Article 11 of Regulation S-X under the Securities Act) as determined in writing by the chief executive officer or chief financial officer of Company, is not less than $25,000,000;
(vii) so long as no Event if such acquisition had occurred on the first day of Default has occurred and is continuingthe most recent twelve-month period for which Company’s results of operations are available, Company would be in compliance with the covenant set forth in subsection 7.6A and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after Consolidated Leverage Ratio would be at least 0.25 below the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital Consolidated Leverage Ratio required as of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1)subsection 7.6B, and Company has delivered to Administrative Agent an Officer’s Certificate so stating and attaching financial information and calculations in each case so long as the net cash Investment by Company or form and substance reasonably satisfactory to Administrative Agent required to confirm such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timestatement.
Appears in 2 contracts
Samples: Credit Agreement (Ruths Chris Steak House, Inc.), Credit Agreement (Ruths Hospitality Group, Inc.)
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8Expenditures;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Domestic Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, date and (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, (1) the Company and its Subsidiaries shall be in Pro Forma Compliance, Compliance and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, Consolidated Leverage Ratio is not less than $25,000,0003.25 to 1.00 on a Pro Forma Basis;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries the Subsidiary Guarantors may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) owing by Subsidiaries of Company that are not Subsidiary Guarantors to Company and Subsidiary Guarantors, without duplication) exceed $100,000,000 200,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,00075,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections subsection 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment Investment;
(xv) Subsidiaries that are not Subsidiary Guarantors may make and own Investments in other Subsidiaries that are not Subsidiary Guarantors; and
(bxvi) Investments existing at the time any Person is acquired in any event exceed $50,000,000 (taken together connection with the amount a Permitted Acquisition and not created in contemplation of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timesuch Permitted Acquisition.
Appears in 1 contract
Samples: Credit Agreement (Hexcel Corp /De/)
Investments; Acquisitions. Company Holdings shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries Subsidiary Guarantors may continue to make and own equity Investments in other Subsidiary Guarantors and Holdings may own the Investments owned by them as of the Closing Date it in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary GuarantorCompany;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Holdings, Company or any Subsidiary may make loans to their respective employees for the purchase of shares of the Capital Stock of Holdings; provided that the aggregate principal amount of all such loans at any time outstanding does not exceed $15,000,000 during the term of the Agreement; and that such Person pledges any notes evidencing such loans to Administrative Agent for the benefit of Lenders pursuant to the Security Agreement, and that the proceeds of the sale of such Capital Stock are promptly contributed by Holdings to Company;
(vii) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiiviii) any transaction Company and its Subsidiaries may receive Investments in connection with permitted by subsections 7.5 or 7.7Asset Sales pursuant to subsection 7.7(iii) and other permitted sales of assets under subsection 7.7(v); provided that all such Investments are pledged to Administrative Agent for the benefit of Lenders pursuant to the Security Agreement;
(xiiiix) deposits, prepayments and extensions Holdings may repurchase shares of trade credit in Holdings Capital Stock (or any options or rights to acquire such Capital Stock) from any former or current employee of Holdings or its Subsidiaries to the ordinary course of businessextent permitted under subsection 7.5;
(xivx) Company and its Subsidiaries may acquire assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) (in each case, a “Permitted Acquisition”) and continue to own such assets after the acquisition thereof; provided that (i) the aggregate amount of Cash Consideration paid by Company and its Subsidiaries for Permitted Acquisitions shall not exceed $20,000,000 in the aggregate, and (ii) the aggregate amount of consideration consisting of equity Securities paid by Company and its Subsidiaries for Permitted Acquisitions shall not exceed $7,500,000; and provided further that (i) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 with respect to each such acquisition that results in a Person becoming a Subsidiary, (ii) Company shall have delivered a disclosure statement updating each of the Schedules to this Agreement and the other Loan Documents to reflect any factual revisions or modifications to the information set forth therein resulting from such acquisition; provided that any such update which alters the substantive effect of any representation or warranty, covenant or any other term or condition of this Agreement or any other Loan Document or which discloses an event or circumstance that, in any case, would otherwise require the consent of Administrative Agent, Requisite Lenders or Lenders to such modification, event or circumstance, shall not constitute a modification of this Agreement or any other Loan Document or a permitted disclosure hereunder or thereunder, and shall not excuse any Event of Default or Potential Event of Default which may otherwise arise in connection therewith, without written consent required hereunder of Administrative Agent, Requisite Lenders or Lenders, as the case may be; (iii) after giving effect to such acquisition, Company and its Subsidiaries (1) shall not be engaged in any business not permitted by subsection 7.11, (2) shall be in compliance on a pro forma basis after giving effect to such acquisition with each of the financial covenants contained in subsection 7.6, (3) no Event of Default or Potential Event of Default shall have occurred and be continuing or would result from such acquisition, (4) the representations and warranties in Section 5 hereof (as supplemented in accordance with (ii) above) shall be true, correct and complete in all material respects on and as of the Permitted Acquisition closing date to the same extent as though made on and as of that date (or, to the extent such representations and warranties specifically relate to an earlier date, such representations and warranties shall have been true, correct and complete in all material respects on and as of such earlier date), and (5) Company shall have delivered to Administrative Agent and the Lenders an Officer’s Certificate to the effect set forth in the foregoing clauses (1) through (4) and a Compliance Certificate to evidence clause (2); and (iv) on or before the Permitted Acquisition closing date, Lenders shall have received from Company such other documents and information (including financial information) in respect of such Permitted Acquisition as any Lender may (through Administrative Agent) reasonably request;
(xi) Company and its Subsidiaries may make and own Investments deemed to arise out of guaranties which are otherwise permitted by this Agreement;
(xii) Company and the Subsidiary Guarantors may make and own Investments in Foreign Subsidiaries, provided that the amount of all such Investments made from and after the Closing Date minus the amount of all cash dividends, distributions and other payments received by Company or any of the Subsidiary Guarantors in respect of such Investments after the Closing Date shall not at any time exceed $7,500,000;
(xiii) Foreign Subsidiaries may make and own Investments in the Company or any of its Subsidiaries; and
(xiv) Company and the Subsidiary Guarantors may make and own other Investments in addition to the Investments described otherwise permitted in Schedule 7.3B annexed heretothis subsection 7.3; provided that the aggregate fair market value amount of such Investments (as determined as of the date each such Investment is made) shall does not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time2,000,000.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries Subsidiary Guarantors may make and own additional equity Investments in the Company or any Subsidiary GuarantorGuarantors;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them on the Closing Date (a) in their respective Subsidiaries existing on the Closing Date and (b) described in Schedule 7.3A SCHEDULE 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereofhereto; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;100
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantortheir respective Foreign Subsidiaries; provided PROVIDED that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) 10,000,000 in the aggregate outstanding at any time for all such InvestmentsInvestments since the Closing Date;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xivii) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xivviii) Company and its Subsidiaries may receive Investments in connection with permitted Asset Sales pursuant to subsection 7.7(iii) and other permitted sales of assets under subsection 7.7(v); provided that all such Investments are pledged to Administrative Agent for the benefit of Lenders pursuant to the Security Agreement;
(ix) Company and its Subsidiaries may acquire assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) (in each case, a "PERMITTED ACQUISITION") and continue to own such assets after the acquisition thereof; provided that (i) the aggregate cash consideration paid by Company and its Subsidiaries for any one Permitted Acquisition, including cash paid upon consummation of such acquisition and the amount of additional cash reasonably expected to be paid thereafter shall not exceed $25,000,000, (ii) after giving effect to such acquisition, Company and its Subsidiaries (1) shall not be engaged in any business not permitted by subsection 7.11, (2) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time of such Permitted Acquisition or would result from such acquisition, (3) the Revolving Loan Commitments Amount less the Total Utilization of Revolving Loan Commitments shall be in excess of $10,000,000, and (4) Company shall have delivered to Administrative Agent and the Lenders an Officer's Certificate to the effect set forth in the foregoing clauses (1) through (3); and (iii) on or before the Permitted Acquisition closing date, Lenders shall have received from Company such other documents and information (including financial information) in respect of such Permitted Acquisition as any Lender may (through Administrative Agent) reasonably request.
(x) Foreign Subsidiaries may make and own Investments in any of the Subsidiaries of Company; and
(xi) Company and the Subsidiary Guarantors may make and own other Investments in addition to the Investments described otherwise permitted in Schedule 7.3B annexed heretothis subsection 7.3; provided that the aggregate fair market value amount of such Investments (as determined as of the date each such Investment is made) shall does not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time5,000,000.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of Cash in cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive dayscash equivalents;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock)Company, and Company and any of its Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantorof Company's Subsidiaries;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iii);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company and its Subsidiaries may acquire acquire, in a single transaction or series of related transactions (a) all or substantially all of the assets or a majority of the outstanding Securities entitled to vote in an election of members of the Governing Body of a Person incorporated or organized in the United States of America or (b) any business, division, line of business or other business unit of a Person that is incorporated or organized in the United States of America (such Person or such division, line of business or other business unit of such Person being 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 Company and its Subsidiaries pursuant to subsection 7.11, so long as (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a1) no Event of Default or Potential Event of Default shall then exist or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately would exist after giving effect thereto, (b2) upon the closing of such acquisition, Company shall, and shall cause its Subsidiaries (including Target, if Target is a Person) to, comply with the requirements of subsections subsection 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiaryacquisition, (c3) all representations Company delivers a Compliance Certificate for any acquisition for which total consideration to be paid is in excess of $10,000,000 demonstrating that Company and warranties contained herein and its Subsidiaries are in the other Loan Documents shall be true and correct in all material respects pro forma compliance with the same effect as though such representations and warranties had been made on and as each of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, financial covenants set forth in which case such representations and warranties shall be true and correct in all material respects as of such earlier datesubsection 7.6, (d4) for any such acquisitions Company Target shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition Consolidated EBITDA for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory four fiscal quarter period prior to Administrative Agent or such other financial statements, the acquisition date in each case, available to Company and an amount greater than $0 (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to cost savings due to merger synergies) on a pro forma basis as approved by Administrative Agent, (5) such acquisitionacquisition shall not be a "hostile" acquisition and shall have been approved by the Governing Body and/or shareholders of the Company or such Subsidiary, as applicable, and Target, and (6) the aggregate consideration (including without limitation equity consideration, earn-outs, deferred compensation or non-competition arrangements and the amount of Indebtedness assumed by Company and its Subsidiaries shall be in Pro Forma Compliance, and (eSubsidiaries) the amount paid by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with any such officers’ or employees’ acquisition of shares of Company’s Capital Stock, so long as shall not exceed $30,000,000 in the aggregate per Fiscal Year; provided that no more than -------- $20,000,000 in the aggregate per Fiscal Year may be financed with cash is actually advanced by Company or any of its Subsidiaries to such officers or employees and/or Indebtedness (including Indebtedness assumed in connection with the acquisition of any such obligations;acquisition).
(xvii) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xiviii) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiiix) any transaction permitted Company and its Subsidiaries may enter into transactions governed by subsections 7.5 or 7.7;
(xiii) deposits, prepayments Interest Rate Agreements and extensions of trade credit Currency Agreements entered into in the ordinary course of business;business for the purpose of asset and liability management; and
(xivx) Company and its Subsidiaries may make the and own other Investments described in Schedule 7.3B annexed hereto; provided that the an aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall amount not to exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time5,000,000.
Appears in 1 contract
Investments; Acquisitions. Company and Borrowers shall not, and shall not permit any of its or their Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person (each such acquisition, an “Acquisition”) except:
(i) Company and its Domestic Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and in Cash Equivalents permitted and the Foreign Subsidiaries may make and own Investments in Cash Equivalents and short term investments similar to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysCash Equivalents customarily used in the countries in which they are located;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock)Company, and Company and its Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary GuarantorLoan Parties (other than O-I Europe) and Foreign Subsidiaries that are not Loan Parties may make and own additional equity investments in other non-Loan Parties;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v6.1(iv); provided, that the aggregate amount of such intercompany loans made in cash by Loan Parties (other than O-I Europe) to non-Loan Parties or O-I Europe from and after the Closing Date and outstanding at any time shall not exceed $500,000,000 minus the amount of Investments made by Loan Parties (other than O-I Europe) in non-Loan Parties or O-I Europe pursuant to subsection 6.3(vi) from and after the Closing Date;
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 6.3 annexed hereto hereto;
(v) Company and its Subsidiaries may make Acquisitions (and Company and its Domestic Subsidiaries may make incremental Investments contemplated in connection therewithForeign Subsidiaries necessary to consummate any such Acquisition) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only so long as immediately after giving effect to such Acquisition, the extent such Investments Borrowers are described on Schedule 7.3A or made in accordance compliance with the other provisions financial covenants set forth in subsection 6.6 as of this subsection 7.3the last day of the Fiscal Quarter most recently ended calculated on a Pro Forma Basis after giving effect to such Acquisition and the Revolving Loan Commitments then in effect exceed the Total Utilization of Revolving Loan Commitments by at least $150,000,000;
(vi) Company and its Subsidiaries may acquire any businessmake additional Investments in their respective Foreign Subsidiaries; provided, divisionthat, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund all such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets Investments made after the acquisition thereof; provided that (a) no Potential Event Closing Date minus the aggregate amount of Default or Event of Default shall have occurred all cash dividends, distributions and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed cash payments actually received by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries (other than Foreign Subsidiaries) from their respective Foreign Subsidiaries after the Closing Date, shall be in Pro Forma Compliancenot exceed $250,000,000; and provided, still further, that upon and (e) from and after the amount by which (1) first such date that the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, Consolidated Leverage Ratio is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing3.5:1, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided their respective Foreign Subsidiaries such that the aggregate amount of for all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor including those made after the Closing Date in respect and prior to such first such date) minus the aggregate amount of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor all cash dividends, distributions and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, other cash payments that are comprised of dividends, share repurchases, share redemptions or actually received by Company and its Subsidiaries (other cash returns on than Foreign Subsidiaries) from their respective Foreign Subsidiaries after the Closing Date (including those received after the Closing Date and prior to such share capitalfirst such date) in the aggregate outstanding at any time for all such Investmentsdoes not exceed $500,000,000;
(viiivii) Company and its Subsidiaries may make and own other Investments arising in an aggregate amount not to exceed connection with Commodities Agreements entered into in accordance with current industry practice (at the time of making any time $25,000,000such Investment) or the past practices of Company and its Subsidiaries;
(ixviii) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s Capital StockHoldings’ common stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xix) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale or other sales of assets permitted by subsection 7.76.7;
(xix) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiixi) any transaction In addition to Investments permitted by subsections 7.5 the other clauses of this subsection, Company and its Subsidiaries may make and own other Investments (including intercompany loans permitted by subsection 6.1(iv)) after the Closing Date in an aggregate amount not to exceed an amount equal to (a) 10% of Company’s Consolidated Tangible Net Assets calculated on a Pro Forma Basis plus (b) the amount of Consolidated Excess Cash Flow not required to be applied to prepay Loans pursuant to subsection 2.4B(ii)(e) plus (c) the amount of net Cash proceeds contributed to Company by Holdings from issuances of Holdings Common Stock or 7.7;Permitted Preferred Stock; and
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xivxii) Company and its Subsidiaries may make the Investments enter into and consummate transactions described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is madesubsection 6.7(i) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1and 6.7(ix), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments wholly-owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Domestic Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries and Finance Co.;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v9.1(iv);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8Expenditures;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 9.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s Capital StockHoldings’ common stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xvii) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.79.7;
(xiviii) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfactionmay, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business, exchange accounts receivable that are excluded from Eligible Accounts Receivable under clause (vi) thereof, for Investments;
(xivix) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, Company and its Domestic Subsidiaries may make the and own Permitted Joint Venture Investments described in Schedule 7.3B annexed heretoan aggregate amount not to exceed at any time Cdn.$10,000,000; provided that that, for greater certainty, upon and during the aggregate fair market value occurrence and continuation of such an Event of Default or Potential Event of Default, Company and its Domestic Subsidiaries may own all Permitted Joint Venture Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000then owned by it and them; and
(xvx) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, Company and its Domestic Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time Cdn.$10,000,000; provided that, for greater certainty, upon and during the occurrence and continuation of an Event of Default or Potential Event of Default, Company and its Domestic Subsidiaries may own all Investments then owned by Company or any Subsidiary Guarantor in any it and them. For certainty, neither the acquisition nor the retirement of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred Senior Second Lien Secured Notes in connection with Investments permitted pursuant any exchange of exchange notes therefor (containing substantially identical terms (except that such exchange notes will not contain terms with respect to transfer restrictions or the accrual of liquidated damages) to the foregoing clause (1Senior Second Lien Secured Notes), in each case so long as contemplated by the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeSenior Second Lien Secured Note Indenture shall constitute an Investment.
Appears in 1 contract
Investments; Acquisitions. Company Holdings shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 of, any Person, or any division or line of business of any Person except:
(i) Company Holdings and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) any Subsidiary of Holdings may make and own Investments in Company and in other Subsidiaries of Holdings;
(iii) Holdings and its Subsidiaries may make intercompany loans, guarantees and advances to the extent permitted under subsection 7.1;
(iv) Holdings and its Subsidiaries may consummate the Merger and make related Investments in accordance with the terms and conditions of the Merger Agreement;
(v) Company and its Subsidiaries may make Consolidated Capital Expenditures not prohibited by the First Lien Credit Agreement;
(vi) Company and its Subsidiaries may continue to own the Investments owned by them as of and described in Schedule 7.3 annexed hereto, including any modification, replacement, renewal or extension thereof which does not increase the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantoramount thereof;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(ivvii) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereofPermitted Acquisitions; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make Investments consistent with past practice for the purposes of reimbursing payroll, rent, insurance and own other Investments ordinary course operating expenses of current and future Foreign Subsidiaries that do not conduct, transact or otherwise engage in an aggregate amount not any business or operations other than the provision of services to exceed at any time $25,000,000or on behalf of Company and its Subsidiaries;
(ix) Holdings and Company may acquire and hold obligations of one or more officers or other employees of Company Holdings or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s its Capital Stock, so long as no cash is actually advanced by Company Holdings or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash noncash consideration received in connection with any Asset Sale permitted by subsection 7.77.6;
(xi) Company and its Subsidiaries (a) may acquire make and hold own other Investments through the issuance of Specified Equity and (b) may make and own other Investments in Securities in connection with an aggregate amount not to exceed at any time (x) $6,000,000 plus (y) the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claimSpecified Equity Amount;
(xii) any transaction permitted by subsections 7.5 Company and its Subsidiaries may make and own Investments in connection with the workout, bankruptcy or 7.7reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(xiii) depositsCompany and its Subsidiaries may make and own Investments consisting of lease, prepayments utility and extensions of trade credit other deposits or advances in the ordinary course of business;
(xiv) Company and its Subsidiaries may make and own Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business;
(xv) Holdings and its Subsidiaries may enter into Hedge Agreements as permitted under subsection 7.1(xi);
(xvi) Company and its Subsidiaries may make and own Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value ordinary course of such business consisting of endorsements for collection or deposit;
(xvii) Holdings and its Subsidiaries may make and own Investments (as determined as consisting of advances of payroll payments to employees in the date each such Investment is made) shall not exceed $42,000,000ordinary course of business; and
(xvxviii) Investments by Company and its Subsidiaries may make advances in the form of a cash deposit or any Subsidiary Guarantor in any prepayment of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made expenses to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1)vendors, in each case suppliers and trade creditors so long as such deposits are made and such expenses are incurred in the net cash Investment by ordinary course of business of Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeSubsidiary.
Appears in 1 contract
Samples: Senior Pik Credit Agreement (IntraLinks Holdings, Inc.)
Investments; Acquisitions. Company shall notNo Loan Party will, and shall not nor will it permit any of its 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:
(ia) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, ;
(b) Loan Parties may continue to own the aggregate amount of Cash and Cash Equivalents permitted to be Investments owned by them as of the Second Restatement Date in any Loan Parties and Loan Parties may make and own additional equity Investments in other Loan Parties;
(c) Loan Parties may make intercompany loans to the extent permitted under Section 6.1(e);
(d) Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysmay make Consolidated Capital Expenditures permitted by Section 6.8;
(iie) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date and described in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary GuarantorSchedule 6.3 annexed hereto;
(iiif) Company Parent and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers Officers or other employees of Company Company, Parent or its Subsidiaries in connection with such officersOfficers’ or employees’ acquisition of shares of Company’s Capital Stock, so long as no cash Cash is actually advanced by Company Company, Parent or any of its Subsidiaries to such officers Officers or employees in connection with the acquisition of any such obligations;
(xg) Company and its Subsidiaries may receive make and hold promissory notes own Investments constituting non-Cash proceeds of sales, transfers and other non-cash consideration received in connection with any Asset Sale dispositions of property to the extent permitted by subsection 7.7Section 6.7;
(xih) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiii) Company and its Subsidiaries may make any transaction Restricted Junior Payment expressly permitted by subsections 7.5 Section 6.5 (it being understood that any such Restricted Junior Payment may be made in the form of an intercompany loan or 7.7advance);
(xiiij) depositsCompany and its Subsidiaries may acquire Investments (including debt obligations) received in the ordinary course of business by Company or any of its Subsidiaries in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, prepayments and extensions other disputes with, customers and suppliers arising out of trade credit in the ordinary course of business;
(xivk) Company and its Subsidiaries may acquire Investments of any Person in existence at the time such Person becomes a 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 Subsidiary;
(l) Company and its Subsidiaries may make or continue to hold Investments resulting from deposits referred to in paragraph (c) of the Investments described definition of “Permitted Encumbrances” and clause (viii) of Section 6.2(a);
(m) Company may perform its obligations under and in Schedule 7.3B annexed heretoaccordance with the Conveyance of Undivided Mineral Interest, the Sand Purchase Documents and Natural Gas Hedging Agreements; provided that 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 its 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 fair market value amount not to exceed $1,000,000 at any time outstanding, provided that, such loan or advance is not made in material violation of any law;
(o) Company and its 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 Investments Joint Venture (as determined as such Person or such division, line of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation business or other settlement business unit of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant such Person or such Joint Venture shall be referred to herein as the foregoing clause (1“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, (B) to the net cash Investment extent required by Company Sections 5.9 and 5.10, Collateral Agent, on behalf of Secured Parties, shall have received (or such Subsidiary Guarantor shall receive in connection therewith does not (a) exceed zero after with the tenth day following the making closing of such cash Investment 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, (bC) in any event exceed $50,000,000 the consideration (taken together with including without limitation earn out obligations, deferred compensation and the amount of Indebtedness and other 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 in connection with all such acquisitions shall not exceed in the aggregate (i) up to $50,000,000 of cash on hand and (ii) all or any portion of the Subordinated Indebtedness permitted pursuant to Section 6.1(m) (provided that (i) no more than $20,000,000 of such aggregate consideration may be in the form of seller financing permitted under Section 6.1 and (ii) the aggregate consideration (including without limitation earn out obligations, deferred compensation and the amount of Indebtedness and other cash 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 $25,000,000), (D) the Target is located in the United States of America, Canada or Mexico, and (E) for any such acquisitions Company shall have provided (1) 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 (2) a pro-forma Compliance Certificate certified by the chief financial officer of Company and demonstrating that, immediately after giving effect to such acquisition (including any incurrence of Indebtedness in connection therewith), Loan Parties shall be in compliance with the Consolidated Leverage Ratio, calculated on a Pro Forma Basis (assuming that the Maximum Consolidated Leverage Ratio was 0.20:1.00 less than the maximum ratio provided in Section 6.6 at such time) for the applicable Fiscal Quarter most recently ended, and (E) in the case of the acquisition of a Person, such Person shall become a wholly-owned Subsidiary of a Loan Party;
(p) Company and its Domestic Subsidiaries may make and own Investments then outstanding under this subsection 7.3(xv)) in Foreign Subsidiaries in an aggregate amount not to exceed $10,000,000, at any timetime outstanding; and
(q) in addition to Investments otherwise expressly permitted by this Section, Company and its Subsidiaries may make Investments not exceeding in the aggregate $5,000,000; and
(r) Foreign Subsidiaries may make and own Investments in other Foreign Subsidiaries.
Appears in 1 contract
Investments; Acquisitions. Company Borrowers shall not, and shall not permit any of its their Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company Borrowers and its their Subsidiaries may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;102
(ii) Company Borrowers and its their Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (Borrowers and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), Borrowers and Company and its their wholly-owned Domestic Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries;
(iii) Company Borrowers and its their Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company Borrowers and its their Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company Borrowers and its their Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereofhereto; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;------------
(vi) Company Borrowers and its their Domestic Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) having a fair market value not in excess of $75,000,000 5,000,000 in any individual case one Fiscal Year (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii"Maximum Annual Domestic Investment Amount") and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to $20,000,000 in the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), aggregate and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company Borrowers shall, -------- and shall cause its their Domestic Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary; and provided -------- further, (c) all representations that if Borrowers and warranties contained herein and their Domestic Subsidiaries do not acquire ------- assets as described above in any Fiscal Year in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as full amount of the date Maximum Annual Domestic Investment Amount, then 50% of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization actual fair market value of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, assets acquired is not less than $25,000,000the Maximum Annual Domestic Investment Amount may be expended in any subsequent Fiscal Year for the acquisition of such assets in addition to the Maximum Annual Domestic Investment Amount provided for such subsequent Fiscal Year;
(vii) so long as no Event of Default has occurred Borrowers and is continuing, Company and its their wholly-owned Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantortheir respective wholly-owned Foreign Subsidiaries; provided that (a) the amount of all such Investments -------- constituting equity Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after 2,000,000 in the aggregate for all such Investments since the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (Bb) the share capital amount of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such InvestmentsInvestments constituting loans or advances is that permitted under subsection 7.1(iv);
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company Borrowers may acquire and hold obligations of one or more officers or other employees of Company Borrowers or its their Subsidiaries in connection with such officers’ ' or employees’ ' acquisition of shares of Company’s Capital StockBorrowers' common stock, so long as no cash is actually advanced by Company Borrowers or any of its their Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xix) Company Borrowers and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its their Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company Borrowers or any of its their Subsidiaries or as security for any such Indebtedness or claim;
(xiix) Foreign Subsidiaries of Borrowers may acquire assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any transaction permitted by subsections 7.5 or 7.7;
such 103 acquisition) having a fair market value not in excess of $2,000,000 in any one Fiscal Year (xiiithe "Maximum Annual Foreign Investment Amount") deposits, prepayments and extensions of trade credit $8,000,000 in the ordinary course of business;
(xiv) Company aggregate and its Subsidiaries may make continue to own such assets after the Investments described in Schedule 7.3B annexed heretoacquisition thereof; provided that if such Foreign Subsidiaries do -------- not acquire assets as described above in any Fiscal Year in the aggregate full amount of the Maximum Annual Foreign Investment Amount, then 50% of the amount by which the actual fair market value of such Investments (as determined as assets acquired is less than the Maximum Annual Foreign Investment Amount may be expended in any subsequent Fiscal Year for the acquisition of such assets in addition to the date each Maximum Annual Foreign Investment Amount provided for such Investment is made) shall not exceed $42,000,000subsequent Fiscal Year; and
(xvxi) Borrowers and their Domestic Subsidiaries may make and own Investments by Company or not otherwise described in this subsection 7.3 in an aggregate amount not to exceed at any Subsidiary Guarantor in any time outstanding $10,000,000 plus the principal amount outstanding as of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making Closing Date of such cash Investment and (b) Investments described in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.Schedule 7.3 annexed hereto. ------------
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Amf Bowling Worldwide Inc)
Investments; Acquisitions. Company Parent shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company subject to subsection 6.11A, Parent and its Subsidiaries the Station Borrowers may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysin Cash;
(ii) Company (a) the Acquisitions may occur on the Closing Date in accordance with the terms and its Subsidiaries conditions of the Acquisition Agreements; and (b) Parent and the Station Borrowers may continue to own the equity Investments in any Subsidiaries of Parent owned by them as of the Closing Date and described in Schedule 4.1 annexed hereto (as in effect on the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital StockClosing Date), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company Parent and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries Station Borrowers may make Consolidated Capital Expenditures permitted by subsection 7.86.8, to the extent permitted by the Indenture;
(viv) Company Parent and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and Station Borrowers may make incremental Investments contemplated in connection therewith) advances to employees, directors and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to officers of the extent such Investments are described on Schedule 7.3A or made in accordance with Parent and the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and Station Borrowers in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as ordinary course of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) business for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantorbona fide business purposes, including, without limitation, cash payments that are comprised of dividendsadvances to employees for moving, share repurchasesentertainment and travel expenses, share redemptions or other cash returns on such share capital) drawing accounts and similar expenditures in the aggregate outstanding ordinary course of business, not in excess of $25,000 at any one time for all such Investmentsoutstanding after the Closing Date;
(viiiv) Company Parent and its Subsidiaries the Station Borrowers may make Investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers or in good faith settlement of delinquent obligations of such trade creditors or customers or upon the foreclosure, perfection or enforcement of any Lien in favor of the Parent or any of the Station Borrowers;
(vi) Parent and the Station Borrowers may make Investments in prepayment of taxes and insurance prepayments made in the ordinary course of business; and
(vii) Parent and the Station Borrowers may make and own other additional Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries 250,000 to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale extent permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeIndenture.
Appears in 1 contract
Investments; Acquisitions. Company shall notNo Loan Party will, and shall not nor will it permit any of its 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:
(ia) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, ;
(b) Loan Parties may continue to own the aggregate amount of Cash and Cash Equivalents permitted to be Investments owned by them as of the Second Restatement Date in any Loan Parties and Loan Parties may make and own additional equity Investments in other Loan Parties;
(c) Loan Parties may make intercompany loans to the extent permitted under Section 6.1(e);
(d) Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysmay make Consolidated Capital Expenditures permitted by Section 6.8;
(iie) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date and described in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary GuarantorSchedule 6.3 annexed hereto;
(iiif) Company Parent and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers Officers or other employees of Company Company, Parent or its Subsidiaries in connection with such officersOfficers’ or employees’ acquisition of shares of Company’s Capital Stock, so long as no cash Cash is actually advanced by Company Company, Parent or any of its Subsidiaries to such officers Officers or employees in connection with the acquisition of any such obligations;
(xg) Company and its Subsidiaries may receive make and hold promissory notes own Investments constituting non-Cash proceeds of sales, transfers and other non-cash consideration received in connection with any Asset Sale dispositions of property to the extent permitted by subsection 7.7Section 6.7;
(xih) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiii) Company and its Subsidiaries may make any transaction Restricted Junior Payment expressly permitted by subsections 7.5 Section 6.5 (it being understood that any such Restricted Junior Payment may be made in the form of an intercompany loan or 7.7advance);
(xiiij) depositsCompany and its Subsidiaries may acquire Investments (including debt obligations) received in the ordinary course of business by Company or any of its Subsidiaries in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, prepayments and extensions other disputes with, customers and suppliers arising out of trade credit in the ordinary course of business;
(xivk) Company and its Subsidiaries may acquire Investments of any Person in existence at the time such Person becomes a 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 Subsidiary;
(l) Company and its Subsidiaries may make or continue to hold Investments resulting from deposits referred to in paragraph (c) of the Investments 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 its 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 $1,000,000 at any time outstanding, provided that, such loan or advance is not made in material violation of any law;
(o) Company and its 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, (B) to the extent required by Sections 5.9 and 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 Schedule 7.3B annexed heretothe 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 consideration (including without limitation earn out obligations, deferred compensation and the amount of Indebtedness and other 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 in connection with all such acquisitions shall not exceed in the aggregate (i) up to $50,000,000 of cash on hand and (ii) all or any portion of the Subordinated Indebtedness permitted pursuant to Section 6.1(m) (provided that (i) no more than $20,000,000 of such aggregate consideration may be in the form of seller financing permitted under Section 6.1 and; (ii) the aggregate consideration (including without limitation earn out obligations, deferred compensation and the amount of Indebtedness and other 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 $25,000,000) and (iii) the then-applicable Available Amount, (D) the Target is located in the United States of America, Canada or Mexico, and (E) for any such acquisitions Company shall have provided (1) 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 (2) a pro-forma Compliance Certificate certified by the chief financial officer of Company and demonstrating that, immediately after giving effect to such acquisition (including any incurrence of Indebtedness in connection therewith), Loan Parties shall be in compliance with the Consolidated Leverage the Incurrence Ratio, as of such date calculated on a Pro Forma Basis (assuming that is at least 0.20:1.00 lower than the Maximum Consolidated Leverage Ratio was 0.20:1.00 less than the maximum ratio provided in Section 6.6 at such time) for the applicable Fiscal Quarter most recently ended, and (E) in the case of the acquisition of a Person, such Person shall become a wholly-owned Subsidiary of a Loan Party;
(p) Company and its Domestic Subsidiaries may make and own Investments in Foreign Subsidiaries in an aggregate amount not to exceed $10.000.000, 10,000,000 plus the then-applicable Available Amount, at any time outstanding; and
(q) in addition to Investments otherwise expressly permitted by this Section, Company and its Subsidiaries may make Investments not exceeding in the aggregate $5,000,000 plus the then-applicable Available Amount; and
(r) Foreign Subsidiaries may make and own Investments in other Foreign Subsidiaries;
(s) in addition to Investments otherwise expressly permitted by this Section, Company and its Subsidiaries may make additional Investments under clauses (o), (p) and (q) of this Section 6.3 so long as (i) no Potential Event of Default or Event of Default shall have occurred and be continuing and (ii) the Incurrence Ratio as of such date calculated on a Pro Forma Basis after giving effect to such Investment, would be less than 3.00:1.00;
(t) Company may acquire all of the Capital Stock of Coated Sand from PubCo on the Amendment No. 1 Effective Date on terms reasonably satisfactory to Administrative Agent; and
(u) Parent and its Subsidiaries may make NMTC Investments; provided that the aggregate fair market value amount of such NMTC Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) 60,000,000 at any one time.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 capital stock or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them (a) as of the First Amendment Closing Date in the Company and in any Subsidiaries of Company and (and may convert any such Investments b) as described in the form of Indebtedness into Investments in the form of Capital Stock)SCHEDULE 7.3, and Company and its wholly-owned Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Domestic Subsidiaries may acquire any business, division, line or assets (including Capital Stock (and including Capital Stock of Subsidiaries formed in connection with any such acquisition)) for an aggregate purchase price (determined at the time of purchase thereof) having a fair market value not in excess of $75,000,000 in any individual transaction or series of transactions and $150,000,000 in the aggregate MINUS the fair market value of all acquisitions made by Company or a Subsidiary pursuant to clause (vii) (including, in each case, any Indebtedness assumed, but excluding in each case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance value of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price Stock of Company issued as consideration in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), transaction) and continue to own such assets after the acquisition thereof; provided PROVIDED that (aw) the assets or Person so acquired shall be in the same line of business as Company and its Subsidiaries and located in the United States, (x) no Event of Default or Potential Event of Default or Event of Default shall have occurred exist and be continuing at the time such acquisition occurs or immediately after giving effect theretoto such acquisition, (by) Company shall deliver an Officer's Certificate to Agents on or prior to the date of acquisition demonstrating compliance with the provisions of subsection 7.6 on a pro forma basis, giving effect to the acquisition (including EBITDA of the acquired Person or assets and any Indebtedness incurred to finance such acquisition) as of the first day of the most recent four-Fiscal Quarter period ended prior to date of acquisition and (z) Company shall, and shall cause its Domestic Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viiivi) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,00010,000,000;
(ixvii) Company and its Subsidiaries may acquire assets located outside the United States (including Capital Stock of Persons located outside of the United States) having a fair market value not in excess of $20,000,000 in any one transaction or series of transactions and $40,000,000 in the aggregate (including, in each case, any Indebtedness assumed, but excluding in each case the value of any capital stock of Company issued as consideration in any such transaction) and continue to own such assets after the acquisition thereof; PROVIDED that (a) the assets or Person so acquired shall be in the same line of business as Company and its Subsidiaries, (b) no Event of Default or Potential Event of Default shall exist and be continuing after giving effect to such acquisition, (c) Company shall deliver an Officer's Certificate to Agents on or prior to the date of acquisition demonstrating compliance with the provisions of subsection 7.6 on a pro forma basis, giving effect to the acquisition (including EBITDA of the acquired Person or assets and any Indebtedness incurred to finance such acquisition) as of the first day of the most recent four-Fiscal Quarter period ended prior to date of acquisition;
(viii) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ ' or employees’ ' acquisition of shares of Company’s Capital Stock's common stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xix) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;; and
(xix) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.
Appears in 1 contract
Investments; Acquisitions. Company Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 capital stock or other ownership interests of any Person, or any division or line of business of any Person except:
(i) Company Borrower and its Subsidiaries may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company Borrower and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries Guarantors may make and own additional Investments in Subsidiaries that are Guarantors or in Borrower; any Foreign Loan Party may make and own Investments in any other Foreign Loan Party in the Company same Approved Jurisdiction, in any other Foreign Subsidiary to the extent a part of the UK Restructuring or as otherwise permitted pursuant to subsection 7.1(iv); any Subsidiary which is not a Guarantor or Foreign Loan Party may make and own Investments in Borrower, any Guarantor and any Foreign Loan Party or any other Subsidiary Guarantorwhich is not a Guarantor or a Foreign Loan Party; and Borrower and its Subsidiaries, including Australian Holdco, Joy Australia, Jobic, Dufcorp, Harnischfeger Australia and their respective Subsidiaries, may complete the Australian Restructuring as described in the definition thereof or on such other terms and conditions as are acceptable to Agent;
(iii) Company and its Subsidiaries Borrower may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans own Intercompany Loans to Foreign Loan Parties to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company Borrower and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company Borrower and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company Borrower and its Subsidiaries may acquire any businessmake Permitted Acquisitions for which the aggregate consideration paid by Borrower and its Subsidiaries since the Closing Date (the “Acquisition Consideration”) including without limitation, divisionthe fair market value of all Cash, line common stock of Borrower or assets (including Capital Stock other property paid or transferred, and including Capital Stock the aggregate amount of Subsidiaries formed all Indebtedness incurred or assumed in connection with such Permitted Acquisition or other liabilities assumed or incurred by Borrower or any such acquisition) for an aggregate purchase price (determined at of its Subsidiaries, in each case to the time of purchase thereof) extent permitted pursuant to subsection 7.1, shall not exceed $25,000,000 in excess of any one Fiscal Year or $75,000,000 in the aggregate (the “Maximum Acquisition Amount”); provided, however, that the Maximum Acquisition Amount for any individual case (provided that such amount may Fiscal Year shall be increased by an amount equal to 50% of the excess, if any, of the Maximum Acquisition Amount for the previous Fiscal Year (without giving effect to any adjustment made pursuant to this proviso) over the actual amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund Acquisition Consideration for such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) previous Fiscal Year; and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that further that:
(a) prior to the consummation of any Permitted Acquisition, Borrower shall deliver to Agent (1) an Officer’s Certificate (x) certifying that no Potential Event of Default or Event of Default under the Loan Documents shall have occurred then exist or shall occur as a result of such Permitted Acquisition, and be continuing at the time such acquisition occurs or immediately (y) demonstrating that after giving effect theretoto such Permitted Acquisition and all Indebtedness to be incurred, assumed or repaid in connection with or as consideration for such Permitted Acquisition, Borrower and its Subsidiaries shall be in compliance on a Pro Forma Basis with the financial covenants set forth in subsection 7.6 for the four consecutive Fiscal Quarter period ending immediately prior to the date of the proposed Permitted Acquisition, and (2) such other materials and information as Agent may reasonably request; and
(b) Company Borrower shall, and shall cause its Subsidiaries to, (x) in the event of any Permitted Acquisition of another Person (other than Borrower or any of its Subsidiaries), make such acquired Person a Subsidiary of Borrower or any of its Subsidiaries or merge such Person with and into Borrower or any of its Subsidiaries, and (y) comply with the requirements of subsections 6.8 subsection 6.9, including without limitation granting to Agent, on behalf of Lenders, a valid and 6.9 (within the time period required thereunder perfected First Priority Lien on all such acquired assets or within other property; provided, however, that such other time period as Administrative Agent may permit in its sole discretion) valid and perfected First Priority Lien need not be granted with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the any assets or other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) property acquired in connection with any Permitted Acquisition to the extent such acquisition for the last Fiscal Year of such Person assets or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory other property are subject to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;Liens otherwise permitted under subsection 7.2A(iv).
(vii) so long as no Event of Default has occurred Borrower, any Guarantor and is continuing, Company and its Subsidiaries any Foreign Loan Party may make and own additional Investments in any Subsidiary that is Subsidiaries which are not a Subsidiary GuarantorGuarantors or Foreign Loan Parties; provided that (a) the aggregate amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor made after the Closing Date in respect Date, together with the aggregate amount of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital Indebtedness of such Subsidiary that is Subsidiaries under subsection 7.1(iv)(C), does not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) exceed $20,000,000 in the aggregate outstanding at any time for all such Investmentstime;
(viii) Company Borrower and its Subsidiaries may make and maintain Investments received 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, in each case arising in the ordinary course of business; and
(ix) Borrower and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1under subsection 7.7(iv), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.
Appears in 1 contract
Samples: Credit Agreement (Joy Global Inc)
Investments; Acquisitions. The Company shall will not, and shall will not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any Person, including any Joint Venture, or acquire, by purchase or otherwise, all or substantially all the business, property Property or fixed assets of, or Capital Stock or other ownership interest of any Person, or any division or line of business of any Person except:
(ia) the Company and its Subsidiaries may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, ;
(b) the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Wholly-Owned Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysmay make and own additional equity Investments in their respective Wholly-Owned Domestic Subsidiaries;
(iic) the Company and its Subsidiaries may make intercompany loans to the extent permitted under Section 10.1(d);
(d) the Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by Section 10.8;
(e) the Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date and described in Schedule 10.3;
(f) the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Domestic Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that thereof if (ai) such acquisition is approved in advance by the Board of Directors of the Company, and (ii) immediately prior to and after giving effect to such acquisition, no Potential Event of Default or Event of Default shall have occurred and be continuing at continuing; provided that the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Domestic Subsidiaries to, comply with the requirements of subsections 6.8 Sections 9.7 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) 9.8 with respect to each such acquisition that results in a Person becoming a Material Subsidiary, ; and
(c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (eg) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of the Company or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of the Company’s Capital Stockcommon stock, so long as no cash is actually advanced by the Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Equity Interests of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments wholly-owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Domestic Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Subsidiaries may (x) make Consolidated Capital Expenditures Expenditures, (y) enter into any Converted Capital Lease otherwise permitted by subsection 7.8pursuant to this Agreement and (z) exercise a purchase option under any lease with respect to any existing Facility, to the extent otherwise permitted under this Agreement;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company and its Domestic Subsidiaries may (x) acquire any business, division, line or assets (including Capital Stock Equity Interests and including Capital Stock Equity Interests of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), (y) incur construction and continue to own such assets after development costs and expenses in connection with the acquisition thereofconstruction and development of express recovery or similar units or (z) incur construction and development costs and expenses in connection with the construction and development of additional beds at existing Facilities or the construction and development of new Facilities; provided that (ai) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition acquisition, development or construction occurs or immediately after giving effect thereto, (bii) Company shall, and shall cause its Domestic Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiaryacquisition, development or construction, (ciii) all representations at the time of and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, development or construction, Company and its Subsidiaries shall be is in Pro Forma Compliance, Compliance with (a) the financial covenants contained in subsection 7.6 and (eb) the amount maximum Consolidated Leverage Ratio permitted by subsection 7.6B less 0.25x, (iv) for any acquisition, development or construction with a value in excess of $7,500,000, prior to the consummation of such acquisition, development or construction, Company shall have delivered written notice thereof to Administrative Agent (which notice shall include a reasonably detailed description of such proposed acquisition, development or construction), together with the most recent audited financial statements, if available, of the seller or entity to be acquired and (1v) for any acquisition, development or construction with a value in excess of $5,000,000, Company shall have delivered projections updating the Revolving Loan Commitment Amount exceeds (2) Financial Plans delivered pursuant to subsection 6.1(xi), which projections shall reflect Pro Forma Compliance by Company with the Total Utilization financial covenants contained in subsection 7.6 as of Revolving Loan Commitments the last day of each of the four Fiscal Quarters ending immediately after giving effect to such acquisition and any related transactionsacquisition, is not less than $25,000,000development or construction;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Domestic Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ixviii) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s Capital StockEquity Interests, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xix) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xix) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xivxi) Company and its Subsidiaries may make and own equity and debt Investments in domestic Joint Ventures in an aggregate amount at any time outstanding not to exceed $30,000,000 (it being agreed the Investments described amount of any investment “outstanding” shall not be reduced by any amount received in Schedule 7.3B annexed hereto; provided that the aggregate fair market value respect of such Investments (as determined as of the date each such Investment investment that is made) shall not exceed $42,000,000included in Consolidated EBITDA for any period); and
(xvxii) Company and its Subsidiaries may own equity Investments by Company or any Subsidiary Guarantor in any HUD Subsidiary, provided that such Investments exist at the time of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making designation of such cash Investment and (b) HUD Subsidiary as such in any event exceed $50,000,000 (taken together accordance with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.7.3B.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments wholly-owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Domestic Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries and Finance Co.;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v9.1(iv);; 113
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.89.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 9.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ ' or employees’ ' acquisition of shares of Company’s Capital StockHoldings' common stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xvii) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.79.7;
(xiviii) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfactionmay, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business, exchange accounts receivable that are excluded from Eligible Accounts Receivable under clause (vi) thereof , for Investments;
(xivix) Company may make and own Permitted Joint Venture Investments in an aggregate amount not to exceed at any time Cdn.$10,000,000; and
(x) Company and its Domestic Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time Cdn.$15,000,000. For certainty, neither the Investments described in Schedule 7.3B annexed hereto; provided that acquisition nor the aggregate fair market value retirement of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred Senior Notes in connection with Investments permitted pursuant any exchange of exchange notes therefor (containing substantially identical terms (except that such exchange notes will not contain terms with respect to transfer restrictions or the accrual of liquidated damages) to the foregoing clause (1Senior Notes), in each case so long as contemplated by the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeSenior Note Indenture, shall constitute an Investment.
Appears in 1 contract
Samples: Credit Agreement (Nacg Finance LLC)
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of and Company’s Foreign Subsidiaries may make and own Investments in Foreign Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysEquivalents;
(ii) Company and its wholly-owned Subsidiaries may make and own additional equity Investments in their respective wholly-owned Subsidiaries (a) in an aggregate amount not to exceed $2,500,000 at any time and (b) resulting from Subsidiary Debt Conversions;
(iii) Company and its Subsidiaries may make intercompany loans to the extent permitted under subsections 6.1(iv) and (v);
(iv) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date and described in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8Schedule 6.3 annexed hereto;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) having a fair market value not in excess of $75,000,000 20,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereofone Fiscal Year; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, ;
(bvi) Company shall, and shall cause its Subsidiaries to, comply with Pursuant to the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000Acquisition Agreement;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,0003,000,000;
(viii) Company and its Subsidiaries may acquire the remaining 51% ownership interest of Hypercom (Thailand) Co., Ltd. not already directly or indirectly owned by Company;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;6.6; and
(xix) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.
Appears in 1 contract
Samples: Credit Agreement (Hypercom Corp)
Investments; Acquisitions. Company and Borrowers shall not, and shall not permit any of its or their Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person (each such acquisition, an "ACQUISITION") except:
(i) Company and its Domestic Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and in Cash Equivalents permitted and the Foreign Subsidiaries may make and own Investments in Cash Equivalents and short term investments similar to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysCash Equivalents customarily used in the countries in which they are located;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock)Company, and Company and its Domestic Subsidiaries may form new wholly-owned Domestic Subsidiaries and make and own additional equity Investments in the Company or any Subsidiary Guarantor;their respective wholly-owned Domestic Subsidiaries and Foreign Subsidiaries may form new wholly-owned Foreign Subsidiaries and make and own additional equity investments in their respective wholly-owned Foreign Subsidiaries; 119
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v6.1(iv);
(iv) Company and its Subsidiaries may continue to own the Investments owned by them and described in SCHEDULE 6.3 annexed hereto and make Consolidated Capital Expenditures permitted the Investments contemplated by subsection 7.8Schedule 6.3;
(v) Company and its Domestic Subsidiaries may continue to own make Acquisitions; PROVIDED that aggregate consideration paid or given (including, without limitation, cash paid, Acquired Indebtedness or assumed Indebtedness and the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated value of any other consideration paid or given, other than Capital Stock of Holdings issued in connection therewithwith such Acquisition) for all Acquisitions after the Closing Date does not exceed $250,000,000; PROVIDED FURTHER that Company and any extension or renewal thereof; provided that any additional Investments made Domestic Borrowers shall comply with respect thereto and shall be permitted only cause their Subsidiaries to the extent such Investments are described on Schedule 7.3A or made in accordance comply with the other provisions of this subsection 7.3subsections 5.9 and 5.10 hereof;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantortheir respective Foreign Subsidiaries; provided PROVIDED that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor 250,000,000 in the aggregate for all such Investments after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such InvestmentsDate;
(viiivii) Company and its Subsidiaries may make and own other Investments arising in an aggregate amount not to exceed connection with Commodities Agreements entered into in accordance with current industry practice (at the time of making any time $25,000,000such Investment) or the past practices of Company and its Subsidiaries;
(ixviii) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ ' or employees’ ' acquisition of shares of Company’s Capital StockHoldings' common stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xix) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.76.7;
(xix) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiixi) Foreign Subsidiaries of Company other than Offshore Borrowers (except the Italian Offshore Borrowers) and Offshore Guarantors may make Investments, Acquisitions and acquire assets (including Capital Stock and including Capital Stock of Foreign Subsidiaries other than Offshore Borrowers and Offshore Guarantors formed in connection with any transaction permitted by subsections 7.5 or 7.7such acquisition);
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xivxii) Company and its Subsidiaries may make and own additional Investments in Joint Ventures made after the Investments described Closing Date in Schedule 7.3B annexed hereto; provided that the an aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall amount not to exceed at any time $42,000,00050,000,000; and
(xvxiii) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made In addition to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant by the other clauses of this subsection, Company and its Subsidiaries may make and own other Investments in an aggregate amount not to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timetime $125,000,000.
Appears in 1 contract
Investments; Acquisitions. Company and Borrowers shall not, and shall not permit any of its or their Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person (each such acquisition, an “Acquisition”) except:
(i) Company and its Domestic Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and in Cash Equivalents permitted and the Foreign Subsidiaries may make and own Investments in Cash Equivalents and short term investments similar to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysCash Equivalents customarily used in the countries in which they are located;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing First Restatement Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock)Company, and Company and its Domestic Subsidiaries may form new wholly-owned Domestic Subsidiaries and make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries and Foreign Subsidiaries may form new wholly-owned Foreign Subsidiaries and make and own additional equity investments in their respective wholly-owned Foreign Subsidiaries;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v6.1(iv); provided, that the aggregate amount of such intercompany loans made in cash by Loan Parties (other than Avir or O-I Canada) to non-Loan Parties, Avir or O-I Canada from and after the First Restatement Date and outstanding at any time shall not exceed $500,000,000 minus the amount of Investments made by Loan Parties (other than Avir or O-I Canada) in non-Loan Parties, Avir or O-I Canada pursuant to subsection 6.3(vi) from and after the First Restatement Date;
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 6.3 annexed hereto and make the Investments contemplated by Schedule 6.3;
(v) Company, its Domestic Subsidiaries and the other Loan Parties (other than Avir and O-I Canada) may make incremental Investments contemplated in connection therewith) and any extension or renewal thereofAcquisitions; provided that aggregate consideration paid or given (including, without limitation, cash paid, Acquired Indebtedness or assumed Indebtedness and the value of any additional Investments made other consideration paid or given, other than Capital Stock of Holdings issued in connection with respect thereto such Acquisition) for all Acquisitions after the First Restatement Date does not exceed $250,000,000; provided further that Company and Domestic Borrowers shall be permitted only comply with and shall cause their Subsidiaries to comply with subsections 5.9 and 5.10 hereof; and provided still further that upon from and after the extent first such Investments are described on Schedule 7.3A or made in accordance with date that the Consolidated Leverage Ratio is less than 3.5:1, Company, its Domestic Subsidiaries and the other provisions of this subsection 7.3Loan Parties (other than Avir and O-I Canada) may make additional Acquisitions such that the aggregate consideration paid or given for all Acquisitions (including those made after the First Restatement Date and prior to such first such date) does not exceed $500,000,000;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed make additional Investments in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (their respective Foreign Subsidiaries; provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund all such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets Investments made after the acquisition thereof; provided that (a) no Potential Event First Restatement Date minus the aggregate amount of Default or Event of Default shall have occurred all cash dividends, distributions and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed cash payments actually received by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries (other than Foreign Subsidiaries) from their respective Foreign Subsidiaries after the First Restatement Date, shall be in Pro Forma Compliance, not exceed $250,000,000; and (e) provided still further that upon and from and after the amount by which (1) first such date that the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, Consolidated Leverage Ratio is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing3.5:1, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided their respective Foreign Subsidiaries such that the aggregate amount for all such Investments (including those made after the First Restatement Date and prior to such first such date) minus the aggregate amount of all cash dividends, distributions and other cash payments actually received by Company and its Subsidiaries (other than Foreign Subsidiaries) from their respective Foreign Subsidiaries after the First Restatement Date (including those received after the First Restatement Date and prior to such Investments first such date) does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments500,000,000;
(viiivii) Company and its Subsidiaries may make and own other Investments arising in an aggregate amount not to exceed connection with Commodities Agreements entered into in accordance with current industry practice (at the time of making any time $25,000,000such Investment) or the past practices of Company and its Subsidiaries;
(ixviii) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s Capital StockHoldings’ common stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xix) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale or other sales of assets permitted by subsection 7.76.7;
(xix) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xi) Foreign Subsidiaries of Company other than Offshore Borrowers (except Avir and O-I Canada) and Offshore Guarantors may make Investments, Acquisitions and acquire assets (including Capital Stock and including Capital Stock of Foreign Subsidiaries other than Offshore Borrowers and Offshore Guarantors formed in connection with any such acquisition);
(xii) Company and its Subsidiaries may make and own additional Investments in Joint Ventures made after the First Restatement Date in an aggregate amount not to exceed at any transaction permitted by subsections 7.5 or 7.7time $100,000,000;
(xiii) depositsIn addition to Investments permitted by the other clauses of this subsection, prepayments Company and extensions of trade credit its Subsidiaries may make and own other Investments in the ordinary course of business;an aggregate amount not to exceed at any time $125,000,000; and
(xiv) Company and its Subsidiaries may make the Investments enter into and consummate transactions described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is madesubsection 6.7(i) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1and 6.7(x), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.
Appears in 1 contract
Samples: Secured Credit Agreement (Owens Illinois Group Inc)
Investments; Acquisitions. Company Holdings shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries any other Subsidiary of Holdings may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries Subsidiary Guarantors may make and own equity Investments in other Subsidiary Guarantors and Holdings may own the Investments owned by it in Company and any Foreign Subsidiary permitted hereunder;
(iii) Company and any other Subsidiary of Holdings may make intercompany loans to the extent permitted under subsection 7.1(iv);
(iv) Company and any other Subsidiary of Holdings may make Consolidated Capital Expenditures;
(v) Company and any other Subsidiary of Holdings may continue to own the Investments owned by them as of the Closing Date and described in the Company and in any Subsidiaries of Company Schedule 7.3 annexed hereto;
(and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock)vi) Holdings, and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantorof Holdings may make loans to their respective employees for the purchase of shares of the Capital Stock of Holdings; provided that the aggregate principal amount of all such loans at any time outstanding does not exceed $10,000,000 during the term of the Agreement; and such Person pledges any notes evidencing such loans to Administrative Agent for the benefit of Lenders pursuant to the Security Agreement, and that the proceeds of the sale of such Capital Stock are promptly contributed by Holdings to Company;
(iiivii) Company and any other Subsidiary of Holdings may acquire Securities in connection with the satisfaction or enforcement of Indebtedness or claims due or owing to such Subsidiary or as security for any such Indebtedness or claim;
(viii) Company and any other Subsidiary of Holdings may receive Investments in connection with permitted Asset Sales pursuant to subsection 7.6(iii) and other permitted sales of assets under subsection 7.6(v); provided that all such Investments are pledged to Administrative Agent for the benefit of Lenders pursuant to the Security Agreement;
(ix) Holdings may repurchase shares of Holdings Capital Stock (or any options or rights to acquire such Capital Stock) from any former or current employee of Holdings or its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v)7.4;
(ivx) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions Subsidiary of this subsection 7.3;
(vi) Company and its Subsidiaries Holdings may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereofin each case, a “Permitted Acquisition”) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (ai) no Potential Event the aggregate amount of Default Cash consideration paid by Company and any other Subsidiary of Holdings for Permitted Acquisitions shall not exceed $10,000,000 in any one Fiscal Year or Event $30,000,000 in the aggregate, and (ii) the aggregate amount of Default consideration consisting of equity Securities paid by Company and any other Subsidiary of Holdings for Permitted Acquisitions shall have occurred not exceed $10,000,000; and be continuing at the time such acquisition occurs or immediately after giving effect thereto, provided further that (bi) Holdings and Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (cii) all representations Company shall have delivered a disclosure statement updating each of the Schedules to this Agreement and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with to reflect any factual revisions or modifications to the same information set forth therein resulting from such acquisition; provided that any such update which alters the substantive effect as though such representations and warranties had been made on and as of the date any representation or warranty, covenant or any other term or condition of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier datethis Agreement or any other Loan Document or which discloses an event or circumstance that, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available would otherwise require the consent of Administrative Agent, Requisite Lenders or Lenders to Company such modification, event or circumstance, shall not constitute a modification of this Agreement or any other Loan Document or a permitted disclosure hereunder or thereunder, and shall not excuse any Event of Default or Potential Event of Default which may otherwise arise in connection therewith, without written consent required hereunder of Administrative Agent, Requisite Lenders or Lenders, as the case may be; (IIiii) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its the Subsidiaries of Holdings (1) shall not be engaged in any business not permitted by subsection 7.9, (2) shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments compliance on a pro forma basis after giving effect to such acquisition and any related transactionswith each of the financial covenants contained in subsection 7.5, is not less than $25,000,000;
(vii3) so long as no Event of Default has or Potential Event of Default shall have occurred and is continuingbe continuing or would result from such acquisition, (4) the representations and warranties in Section 5 hereof (as supplemented in accordance with (ii) above) shall be true, correct and complete in all material respects on and as of the Permitted Acquisition closing date to the same extent as though made on and as of that date (or, to the extent such representations and warranties specifically relate to an earlier date, such representations and warranties shall have been true, correct and complete in all material respects on and as of such earlier date), and (5) Company shall have delivered to Administrative Agent and the Lenders an Officer’s Certificate to the effect set forth in the foregoing clauses (1) through (4) and a Compliance Certificate to evidence clause (2); and (iv) on or before the Permitted Acquisition closing date, Lenders shall have received from Company such other documents and information (including financial information) in respect of such Permitted Acquisition as any Lender may (through Administrative Agent) reasonably request;
(xi) Company and any other Subsidiary of Holdings may make and own Investments deemed to arise out of guaranties which are otherwise permitted by this Agreement;
(xii) Holdings, Company and its Subsidiaries the Subsidiary Guarantors may make additional and own Investments in any Subsidiary that is not a Subsidiary Guarantor; Foreign Subsidiaries, provided that the amount of all such Investments does not (together with Indebtedness permitted made from and after the Restatement Date minus the amount of all cash dividends, distributions and other payments received by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Holdings, Company or any of the Subsidiary Guarantor after the Closing Date Guarantors in respect of (A) such Investments made in such Subsidiary that is after the Restatement Date shall not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investmentsexceed $25,000,000;
(viiixiii) Foreign Subsidiaries may make and own Investments in Holdings or any of its Subsidiaries; and
(xiv) Company and its Subsidiaries the Subsidiary Guarantors may make and own other Investments in an aggregate amount not addition to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described otherwise permitted in Schedule 7.3B annexed heretothis subsection 7.3; provided that the aggregate fair market value amount of such Investments (as determined as of the date each such Investment is made) shall does not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time2,000,000.
Appears in 1 contract
Investments; Acquisitions. Company and Borrowers shall not, and shall not permit any of its or their Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person (each such acquisition, an "Acquisition") except:
(i) Company and its Domestic Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and in Cash Equivalents permitted and the Foreign Subsidiaries may make and own Investments in Cash Equivalents and short term investments similar to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysCash Equivalents customarily used in the countries in which they are located;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Restatement Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock)Company, and Company and its Domestic Subsidiaries may form new wholly-owned Domestic Subsidiaries and make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries and Foreign Subsidiaries may form new wholly-owned Foreign Subsidiaries and make and own additional equity investments in their respective wholly-owned Foreign Subsidiaries;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v6.1(iv); provided, that the aggregate amount of such intercompany loans made in cash by Loan Parties (other than Avir or O-I Canada) to non-Loan Parties, Avir or O-I Canada from and after the Restatement Date and outstanding at any time shall not exceed $500,000,000 minus the amount of Investments made by Loan Parties (other than Avir or O-I Canada) in non-Loan Parties, Avir or O-I Canada pursuant to subsection 6.3(vi) from and after the Restatement Date;
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 6.3 annexed hereto and make the Investments contemplated by Schedule 6.3;
(v) Company, its Domestic Subsidiaries and the other Loan Parties (other than Avir and O-I Canada) may make incremental Investments contemplated in connection therewith) and any extension or renewal thereofAcquisitions; provided that aggregate consideration paid or given (including, without limitation, cash paid, Acquired Indebtedness or assumed Indebtedness and the value of any additional Investments made other consideration paid or given, other than Capital Stock of Holdings issued in connection with respect thereto such Acquisition) for all Acquisitions after the Restatement Date does not exceed $250,000,000; provided further that Company and Domestic Borrowers shall be permitted only comply with and shall cause their Subsidiaries to comply with subsections 5.9 and 5.10 hereof; and provided still further that upon from and after the extent first such Investments are described on Schedule 7.3A or made in accordance with date that the Consolidated Leverage Ratio is less than 3.5:1, Company, its Domestic Subsidiaries and the other provisions of this subsection 7.3Loan Parties (other than Avir and O-I Canada) may make additional Acquisitions such that the aggregate consideration paid or given for all Acquisitions (including those made after the Restatement Date and prior to such first such date) does not exceed $500,000,000;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed make additional Investments in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (their respective Foreign Subsidiaries; provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund all such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets Investments made after the acquisition thereof; provided that (a) no Potential Event Restatement Date minus the aggregate amount of Default or Event of Default shall have occurred all cash dividends, distributions and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed cash payments actually received by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries (other than Foreign Subsidiaries) from their respective Foreign Subsidiaries after the Restatement Date, shall be in Pro Forma Compliance, not exceed $250,000,000; and (e) provided still further that upon and from and after the amount by which (1) first such date that the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, Consolidated Leverage Ratio is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing3.5:1, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided their respective Foreign Subsidiaries such that the aggregate amount for all such Investments (including those made after the Restatement Date and prior to such first such date) minus the aggregate amount of all cash dividends, distributions and other cash payments actually received by Company and its Subsidiaries (other than Foreign Subsidiaries) from their respective Foreign Subsidiaries after the Restatement Date (including those received after the Restatement Date and prior to such Investments first such date) does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments500,000,000;
(viiivii) Company and its Subsidiaries may make and own other Investments arising in an aggregate amount not to exceed connection with Commodities Agreements entered into in accordance with current industry practice (at the time of making any time $25,000,000such Investment) or the past practices of Company and its Subsidiaries;
(ixviii) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ ' or employees’ ' acquisition of shares of Company’s Capital StockHoldings' common stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xix) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale or other sales of assets permitted by subsection 7.76.7;
(xix) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiixi) Foreign Subsidiaries of Company other than Offshore Borrowers (except Avir and O-I Canada) and Offshore Guarantors may make Investments, Acquisitions and acquire assets (including Capital Stock and including Capital Stock of Foreign Subsidiaries other than Offshore Borrowers and Offshore Guarantors formed in connection with any transaction permitted by subsections 7.5 or 7.7such acquisition);
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xivxii) Company and its Subsidiaries may make and own additional Investments in Joint Ventures made after the Investments described Restatement Date in Schedule 7.3B annexed hereto; provided that the an aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall amount not to exceed at any time $42,000,000100,000,000; and
(xvxiii) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made In addition to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant by the other clauses of this subsection, Company and its Subsidiaries may make and own other Investments in an aggregate amount not to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timetime $125,000,000.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8Expenditures;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, date and (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, (1) the Company and its Subsidiaries shall be in Pro Forma Compliance, Compliance and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, Consolidated Leverage Ratio is not less than $25,000,0003.25 to 1.00 on a Pro Forma Basis;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries the Subsidiary Guarantors may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) owing by Subsidiaries of Company that are not Subsidiary Guarantors to Company and Subsidiary Guarantors, without duplication) exceed $100,000,000 150,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,00075,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections subsection 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment Investment;
(xv) Subsidiaries that are not Subsidiary Guarantors may make and own Investments in other Subsidiaries that are not Subsidiary Guarantors; and
(bxvi) Investments existing at the time any Person is acquired in any event exceed $50,000,000 (taken together connection with the amount a Permitted Acquisition and not created in contemplation of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timesuch Permitted Acquisition.
Appears in 1 contract
Samples: Credit Agreement (Hexcel Corp /De/)
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments wholly-owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Domestic Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries;
(iii) Company and its Domestic Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted (including acquisitions of Xxxx’x Xxxxx restaurants from Xxxx’x Xxxxx franchisees) if no Default or Potential Event of Default exists at the time of or would result after giving effect to any such Consolidated Capital Expenditure; provided that in the case of any acquisition of a Xxxx’x Xxxxx restaurant (a) such restaurant is wholly-owned by Company or a Subsidiary of Company upon consummation of such acquisition and (b) after giving effect to any such acquisition and the related adjustments (on a reasonable and prudent pro forma basis in accordance with the standards set forth under Article 11 of Regulation S-X under the Securities Act) as determined in writing by the chief executive officer or chief financial officer of Company, as if such acquisition had occurred on the first day of the most recent twelve-month period for which Company’s results of operations are available, Company would be in compliance with the covenants set forth in subsection 7.87.6A and the Consolidated Leverage Ratio would be at least 0.25 below the Consolidated Leverage Ratio required as of such date pursuant to subsection 7.6B, and Company has delivered to Administrative Agent an Officer’s Certificate so stating and attaching financial information and calculations in form and substance reasonably satisfactory to Administrative Agent required to confirm such statement;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereofhereto; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;and
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including make acquisitions of all the Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at a Person or substantially all of the time assets of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; a Person provided that (a) such Person is in the same or similar line of business as Company and its Subsidiaries, (b) no Default or Potential Event of Default or Event of Default shall have occurred and be continuing exists at the time such acquisition occurs of or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that would result after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance(c) the sole consideration for such acquisition consists of common stock of Company, (d) the prior effective written consent to or approval of such acquisition from the board of directors or equivalent governing body of such Person is obtained and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to any such acquisition and any the related transactionsadjustments (on a reasonable and prudent pro forma basis in accordance with the standards set forth under Article 11 of Regulation S-X under the Securities Act) as determined in writing by the chief executive officer or chief financial officer of Company, is not less than $25,000,000;
(vii) so long as no Event if such acquisition had occurred on the first day of Default has occurred and is continuingthe most recent twelve-month period for which Company’s results of operations are available, Company would be in compliance with the covenants set forth in subsection 7.6A and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after Consolidated Leverage Ratio would be at least 0.25 below the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital Consolidated Leverage Ratio required as of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1)subsection 7.6B, and Company has delivered to Administrative Agent an Officer’s Certificate so stating and attaching financial information and calculations in each case so long as the net cash Investment by Company or form and substance reasonably satisfactory to Administrative Agent required to confirm such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timestatement.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in any Loan Party (other than the Company or any Subsidiary GuarantorFrench Subsidiary);
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv) and (v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8Expenditures;
(v) Company and its Subsidiaries may continue to own Investments existing on, and may make Investments in respect of which a binding agreement has been entered into as of, the Investments Third Amendment Effective Date to the extent described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, date and (d) for any such acquisitions (I) Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) after giving effect to such acquisition, (1) Company and its Subsidiaries shall be in Pro Forma Compliance, (2) Liquidity shall not be less than $200,000,000 on a Pro Forma Basis and (3) the Consolidated Net Leverage Ratio does not exceed 2.75 to 1.00 on a Pro Forma Basis; provided that with respect to any Material Event or to the extent the Consolidated Net Leverage Ratio as of the end of the most recent Fiscal Quarter for which a Compliance Certificate has been delivered was greater than 2.00 to 1.00, Company shall have delivered to Administrative Agent a pro-pro- forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which compliance with clauses (1) the Revolving Loan Commitment Amount exceeds ), (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000(3) above;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) investments in the aggregate outstanding at any time form of Hedge Agreements entered into in the ordinary course of business and not for all such Investmentsspeculative purposes;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xix) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xix) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiixi) any transaction permitted by subsections subsection 7.5 or 7.7;
(xiiixii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xvxiii) Investments by Company or any Subsidiary Guarantor Loan Party in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor Loan Party in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment;
(xiv) Subsidiaries that are not Subsidiary Guarantors may make and own Investments in other Subsidiaries that are not Subsidiary Guarantors;
(xv) Investments existing at the time any Person is acquired in connection with a Permitted Acquisition and not created in contemplation of such Permitted Acquisition;
(xvi) loans or advances made by any Loan Party or any Subsidiary of a Loan Party to such Loan Party’s or such Subsidiary’s employees on an arms-length basis in the ordinary course of business consistent with past practices, up to a maximum of $50,000 to any employee and up to a maximum of $250,000 in the aggregate at any one time outstanding;
(xvii) the Company and its Subsidiaries may acquire all or any portion of the Finance Lease Energy Assets (x) upon termination of, and in accordance with the terms of, the Finance Lease or (ii) in connection with the consummation of an Energy Sale;
(xviii) any Investment (other than the acquisition of any business, division, line or assets by Company or any Subsidiary) not otherwise permitted by clauses (i) through (xvii) above; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such Investment is made or immediately after giving effect thereto, (b) after giving effect to such Investment, (1) Company and its Subsidiaries shall be in Pro Forma Compliance, (2) the Consolidated Net Leverage Ratio does not exceed 2.75 to 1.00 on a Pro Forma Basis and (3) Liquidity shall not be less than $200,000,000 on a Pro Forma Basis; provided that with respect to any event Material Event or to the extent the Consolidated Net Leverage Ratio is greater than 2.00 to 1.00 as of the end of the most recent Fiscal Quarter for which a Compliance Certificate has been delivered, Company shall have delivered to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating compliance with clauses (1), (2) and (3) above; and
(xix) Investments in Joint Ventures and/or the French Subsidiary in an aggregate amount not to exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) 10,000,000 at any timetime outstanding.
Appears in 1 contract
Samples: Credit Agreement (Ferroglobe PLC)
Investments; Acquisitions. Company shall not, (First Amended and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:Restated Credit Agreement)
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments wholly-owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Domestic Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries and Finance Co.;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v9.1(iv);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8Expenditures;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 9.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s Capital StockHoldings’ common stock (or after the occurrence of a Qualifying IPO, common stock of the Qualifying IPO Issuer), so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xvii) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.79.7;
(xiviii) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfactionmay, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business, exchange accounts receivable that are excluded from Eligible Accounts Receivable under clause (vi) thereof, for Investments;
(xivix) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, Company and its Domestic Subsidiaries may make the and own Permitted Joint Venture Investments described in Schedule 7.3B annexed heretoan aggregate amount not to exceed at any time Cdn.$10,000,000; provided that that, for greater certainty, upon and during the aggregate fair market value occurrence and continuation of such an Event of Default or Potential Event of Default, Company and its Domestic Subsidiaries may own all Permitted Joint Venture Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000then owned by it and them; and
(xvx) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, Company and its Domestic Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time Cdn.$15,000,000; provided that, for greater certainty, upon and during the occurrence and continuation of an Event of Default or Potential Event of Default, Company and its Domestic Subsidiaries may own all Investments then owned by Company or any Subsidiary Guarantor in any it and them. For certainty, neither the acquisition nor the retirement of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred Senior Second Lien Secured Notes in connection with Investments permitted pursuant any exchange of exchange notes therefor (containing substantially identical terms (except that such exchange notes will not contain terms with respect to transfer restrictions or the accrual of liquidated damages) to the foregoing clause (1Senior Second Lien Secured Notes), in each case so long as contemplated by the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeSenior Second Lien Secured Note Indenture shall constitute an Investment.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) (a) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries Subsidiary Guarantors may make and own additional Investments in the Company and Subsidiary Guarantors, (b) Subsidiaries of Company may make and own Investments in Company or any Subsidiary Guarantor, (c) Company and Subsidiary Guarantors may make Investments of Foreign Intellectual Property in Foreign Subsidiaries and (d) Foreign Subsidiaries of Company may make and own Investments in other Foreign Subsidiaries of Company;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(viv) Company and its Subsidiaries may continue to own the Investments owned by them on the Closing Date (or contractually committed on the Closing Date to be made by them) and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(viv) Company and its Subsidiaries Subsidiary Guarantors may acquire any business, division, line make Investments used or assets useful in the business of Company and Subsidiary Guarantors (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisitionInvestment) for an aggregate purchase price (determined at the time of purchase thereof) having a fair market value not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), aggregate and continue to own such assets Investments after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Domestic Subsidiaries to, comply no later than ten Business Days (or such longer period specified in subsection 6.9) after the consummation of any such acquisition (or such later date as may be agreed to by Administrative Agent in its sole discretion) with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period 6.9, as Administrative Agent may permit in its sole discretion) applicable, with respect to each such acquisition that results in a Person becoming a Material Subsidiaryacquisition, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate any such acquisition and the related adjustments (including pro forma adjustments arising out of events which are directly attributable to a specific earlier datetransaction, are factually supportable and are expected to have a continuing impact, in each case determined on a basis reasonably acceptable to Administrative Agent with respect to, among other things, cost savings resulting from head count reduction, closure of facilities and similar restructuring charges, which case such representations and warranties pro forma adjustments shall be true and correct certified by the chief financial officer of Company) as determined in all material respects writing by the Governing Body of Company, as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any if such acquisition had occurred on the first day of the most recent twelve-month period for which Company’s results of operations are available, Company would be in compliance with the last Fiscal Year of such Person or line of businesscovenants set forth in subsection 7.6, audited or reviewed by independent certified public accountants and Company has delivered to Administrative Agent an Officer’s Certificate so stating and attaching financial information and calculations in form and substance reasonably satisfactory to Administrative Agent or required to confirm such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliancestatement, and (ed) to the amount by extent that such Investments have a fair market value in excess of $25,000,000 in the aggregate, such Investments shall only be made from the proceeds of Incremental Term Loans which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect proceeds are applied to such acquisition and any related transactions, is not less than $25,000,000Investments within 10 Business Days of the borrowing thereof;
(viivi) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantortheir respective Foreign Subsidiaries; provided that (a) the amount of all such Investments constituting equity Investments, together with all Investments permitted under subclause (b) of this subsection 7.3(vi), does not exceed $10,000,000 in the aggregate and (b) in the case of such Investments constituting intercompany Indebtedness, (I) the amount of all such Investments, together with Indebtedness all Investments permitted by under subclause (a) of this subsection 7.1(v7.3(vi)) , does not exceed $100,000,000 10,000,000 in aggregate principal amount at any time outstanding, (net of cash amounts paid by any Subsidiary that is not II) a Subsidiary Guarantor security interest in all such intercompany Indebtedness owed to Company or any Domestic Subsidiary Guarantor after shall have been granted to Administrative Agent for the Closing Date in respect benefit of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor Lenders and (BIII) the share capital of if such Subsidiary that intercompany Indebtedness is not evidenced by a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions promissory note or other cash returns on instrument in favor of Company or any Domestic Subsidiary, such share capital) in promissory note or instrument shall have been pledged to Administrative Agent pursuant to the Security Agreement; provided further that the aggregate outstanding amount of Investments permitted under this subsection 7.3(vi) together with the aggregate amount of Contingent Obligations permitted under subsection 7.4(vii) shall at any no time for all such Investmentsexceed $10,000,000;
(viiivii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time the sum of $25,000,0002,000,000;
(ixviii) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries (a) in connection with such officers’ or employees’ acquisition of shares of Company’s Holdings’ Capital Stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligationsobligations or (b) otherwise not in excess of $2,500,000 at any one time outstanding;
(xix) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;; and
(xix) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 capital stock or other ownership interests of any Person, or any division or line of business of any Person except:
(i) Company and its Active Subsidiaries may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) (a) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries Wholly-Owned Subsidiary Guarantors may make and own additional equity Investments in their respective Wholly- Owned Subsidiary Guarantors other than XXXXX and (b) Company and its Wholly-Owned Subsidiary Guarantors (other than XXXXX) may make and own additional equity Investments in XXXXX so long as the aggregate amount of all such additional equity Investments by Company or and its Wholly- Owned Subsidiary Guarantors (other than XXXXX) shall not exceed $750,000 in any Subsidiary GuarantorFiscal Year;
(iii) Company and its Active Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Active Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Active Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3------------ hereto;
(vi) Company and its Subsidiaries the Subsidiary Guarantors may acquire any business, division, line or assets (including Capital Stock and including Capital Stock capital stock or other ownership interests in a Person that will become a Subsidiary as a result of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) having a fair market value not in excess of $75,000,000 5,000,000 in any individual case (provided that such amount may be increased by the amount aggregate over the term of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), Agreement and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or -------- Potential Event of Default shall have occurred and be continuing or would result therefrom and (b) Company shall have a Revolving Borrowing Base availability of at least $15,000,000 as of the time date of any such acquisition occurs or immediately after giving effect thereto, (b) to such acquisition and Company shall have delivered an Officer's Certificate certifying to the requirements of this subsection 7.3(vi); and provided further that -------- ------- Company shall, and shall cause its Subsidiaries the Subsidiary Guarantors to, comply with the requirements of subsections 6.8 6.9 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) 6.10 with respect to each such acquisition that results in a Person becoming a Material Subsidiary, Subsidiary (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect theretoeach a "Permitted Acquisition"), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event Company may make and maintain Investments in intercompany loans to Glit pursuant to the Glit Subsidiary Note in a principal amount not to exceed $3,500,000; provided that Company shall obtain -------- and pledge to Agent for the benefit of Default has occurred Lenders the Glit Subsidiary Note with respect to such loans and is continuingthe Glit Subsidiary Note shall be secured pursuant to the Glit Subsidiary Security Agreement by a duly perfected first priority security interest in all of the personal and mixed property of Glit described in the Glit Subsidiary Security Agreement and all such security interests shall be assigned and pledged to Agent for the benefit of Lenders pursuant to the Security Agreement;
(viii) Company may make and maintain Investments in intercompany loans to Xxxxx pursuant to the Xxxxx Subsidiary Note in a principal amount not to exceed $7,500,000; provided that (a) Company shall -------- obtain and pledge to Agent for the benefit of Lenders the Xxxxx Subsidiary Note with respect to such loans, (b) the Xxxxx Subsidiary Note shall be secured pursuant to the Xxxxx Subsidiary Security Agreement by a duly perfected first priority security interest in all of the real, mixed and personal property of Xxxxx described in the Xxxxx Subsidiary Security Agreement, and (c) all such security interests shall be assigned and pledged to Agent for the benefit of Lenders pursuant to the Security Agreement;
(ix) Company and its Subsidiaries Wholly-Owned Subsidiary Guarantors may make additional Investments (including Investments constituting loans or advances permitted under subsection 7.1(iv)) in any their respective Wholly-Owned Subsidiaries that are Foreign Active Subsidiaries; provided that (a) the amount of all such additional Investments -------- (excluding the Investments described in subsections 7.3(vii) and (viii)) in each such Wholly-Owned Subsidiary that is a Foreign Active Subsidiary shall not exceed at any time 10% of the net worth (as determined in accordance with GAAP) of such Wholly-Owned Subsidiary that is a Subsidiary Guarantor; provided that Foreign Active Subsidiary, (b) the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(vexcluding the Investments described in subsections 7.3(vii) and (viii)) by Company and its Wholly-Owned Subsidiary Guarantors in all such Wholly-Owned Subsidiaries that are Foreign Active Subsidiaries shall not exceed at any time an aggregate amount equal to $100,000,000 500,000 and (net c) no Potential Event of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Default or Event of Default shall exist or would result from such Investment;
(x) Company or any Subsidiary Guarantor after the Closing Date of its Subsidiaries may make and own Investments in respect of (A) Investments made in Securities of another Person received by Company or such Subsidiary that is not in connection with a Subsidiary Guarantor and (B) the share capital plan of reorganization of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;Person; and
(viiixi) Company and its Active Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time1,000,000.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Restricted Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) (a) Company and its Subsidiaries may continue to own the Investments wholly-owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Domestic Subsidiaries may make and own additional equity Investments in the Company their respective wholly-owned Domestic Subsidiaries (other than Unrestricted Subsidiaries) and in Domestic Subsidiaries (other than Unrestricted Subsidiaries) that become wholly-owned as a result of or any Subsidiary Guarantorin connection with such Investments and (b) Foreign Subsidiaries may make and own additional equity Investments in other Foreign Subsidiaries;
(iii) Company and its Restricted Subsidiaries may (a) become liable make Investments in respect the form of Contingent Obligations Indebtedness permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Restricted Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company and its Restricted Subsidiaries may acquire any business, division, line or assets make Permitted Acquisitions (including Capital Stock and including the acquisition of the Capital Stock of Restricted Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8Permitted Acquisition)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Restricted Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each Person acquired or Person formed to acquire the assets of another Person to the extent such acquisition that results in a requirements are applicable to such Person becoming a Material Subsidiary, and (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (eCompliance at the time of such acquisition; provided that Permitted Acquisitions may only be made pursuant to this subsection 7.3(vi) to the amount by which (1) extent that the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect principal assets or business acquired pursuant to such acquisition Permitted Acquisition are owned by Loan Parties or Persons that will become Loan Parties under subsections 6.8 and any related transactions, is not less than $25,000,0006.9;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Restricted Subsidiaries may receive and hold promissory notes and other non-cash Cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xiviii) Company and its Restricted Subsidiaries may acquire and hold Securities or Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries Restricted Subsidiaries, including Securities or Investments received in connection with the bankruptcy, insolvency or reorganization of the Person obligated on such Indebtedness or claim, or as security for any such Indebtedness or claim;
(ix) Company and its Restricted Subsidiaries may make loans (financing equipment sold by Company and its Restricted Subsidiaries) or equipment leases to customers doing business with Company and its Restricted Subsidiaries in an aggregate principal amount not to exceed $40,000,000 at any time outstanding (with the principal amount of such leases to be deemed to be equal to the discounted present value, at a market rate of interest, of the remaining rental payments plus any residual value of the leased equipment as shown on Company’s financial statements);
(x) Company and its Restricted Subsidiaries may make loans to customers doing business with Company and its Restricted Subsidiaries in settlement of accounts receivable owing to Company or any of its Restricted Subsidiaries from such customer in an aggregate principal amount not to exceed $15,000,000 at any time outstanding;
(xi) Company and its Restricted Subsidiaries may make other Investments at any time in an amount not to exceed (a) the then available Annual Basket Amount; provided that at the time of any such Investment using the Annual Basket Amount Net Revolver Usage does not exceed $25,000,000, plus (b) the then available Available Basket Amount, plus (c) the then available Available Equity Amount; provided that at the time any Investment is made under this subsection 7.3(xi), no Potential Event of Default or Event of Default shall have occurred and be continuing and Company and its Restricted Subsidiaries shall be in Pro Forma Compliance;
(xii) any transaction permitted by subsections 7.5 Company and its Restricted Subsidiaries may make loans and advances to officers, directors or 7.7employees for business-related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business or consistent with past practice;
(xiii) depositsCompany and its Restricted Subsidiaries may make additional Investments in Foreign Subsidiaries of Company; provided that the aggregate outstanding amount (without duplication) of all (1) Investments in Foreign Subsidiaries under this subsection 7.3(xiii), prepayments (2) Indebtedness of Foreign Subsidiaries to Company or any Subsidiary Guarantor outstanding under subsection 7.1(iv) and extensions (3) Contingent Obligations in respect of trade credit in the ordinary course obligations of businessany Foreign Subsidiary under subsection 7.4(viii) does not exceed $60,000,000 at any time;
(xiv) Company and its Subsidiaries any Foreign Subsidiary may make Permitted Acquisitions (including the Investments described acquisition of the Capital Stock of Subsidiaries formed in Schedule 7.3B annexed heretoconnection with any such Permitted Acquisition); provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the aggregate fair market value time such acquisition occurs or after giving effect thereto and (b) Company shall be in Pro Forma Compliance at the time of such acquisition;
(xv) to the extent constituting Investments, (i) Restricted Junior Payments permitted under subsection 7.5 and (ii) Equity Related Compensation Payments;
(xvi) Investments (as determined as of the date each such Investment is made) shall owned in Persons acquired in Permitted Acquisitions and not exceed $42,000,000made in contemplation thereof; and
(xvxvii) Company and its Restricted Subsidiaries may make Permitted Acquisitions and make and own other Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries an aggregate amount (1without duplication) consisting of Capital Stock and/or intercompany notes made not to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then 10,000,000 outstanding under this subsection 7.3(xv)) at any time; provided that such Permitted Acquisition or Investment is made prior to the second anniversary of the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (United Online Inc)
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) (a) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries Subsidiary Guarantors may make and own additional Investments in the Company and Subsidiary Guarantors, (b) Subsidiaries of Company may make and own Investments in Company or any Subsidiary GuarantorGuarantor and (c) Subsidiaries of Company that are not Subsidiary Guarantors may make and own Investments in other Subsidiaries of Company that are not Subsidiary Guarantors;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(viv) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(viv) Company and its Subsidiaries Subsidiary Guarantors may acquire any business, division, line make Investments used or assets useful in the business of Company and Subsidiary Guarantors (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisitionInvestment) for an aggregate purchase price (determined at the time of purchase thereof) having a fair market value not in excess of $75,000,000 40,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), aggregate and continue to own such assets Investments after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Domestic Subsidiaries to, comply no later than ten Business Days after the consummation of any such acquisition (or such later date as may be agreed to by Administrative Agent in its sole discretion) with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, Domestic Subsidiary and (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate any such acquisition and the related adjustments (including pro forma adjustments arising out of events which are directly attributable to a specific earlier datetransaction, are factually supportable and are expected to have a continuing impact, in each case determined on a basis reasonably acceptable to Administrative Agent with respect to, among other things, cost savings resulting from head count reduction, closure of facilities and similar restructuring charges, which case such representations and warranties pro forma adjustments shall be true and correct certified by the chief financial officer of Company) as determined in all material respects writing by the Governing Body of Company, as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any if such acquisition had occurred on the first day of the most recent twelve-month period for which Company’s results of operations are available, Company would be in compliance with the last Fiscal Year of such Person or line of businesscovenants set forth in subsection 7.6, audited or reviewed by independent certified public accountants and Company has delivered to Administrative Agent an Officer’s Certificate so stating and attaching financial information and calculations in form and substance reasonably satisfactory to Administrative Agent or required to confirm such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000statement;
(viivi) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantortheir respective non wholly-owned Subsidiaries or Foreign Subsidiaries; provided that (a) the amount of all such Investments constituting equity Investments, together with all Investments permitted under subclause (b) of this subsection 7.3(vi), does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after 10,000,000 in the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor aggregate and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capitalb) in the case of such Investments constituting intercompany Indebtedness, (1) the amount of all such Investments, together with all Investments permitted under subclause (a) of this subsection 7.3(vi), does not exceed $10,000,000 in aggregate outstanding principal amount at any time for outstanding, (2) a security interest in all such Investmentsintercompany Indebtedness shall have been granted to Administrative Agent for the benefit of Lenders and (3) if such intercompany Indebtedness is evidenced by a promissory note or other instrument, such promissory note or instrument shall have been pledged to Administrative Agent pursuant to the Security Agreement; provided further that the aggregate amount of Investments permitted under this subsection 7.3(vi) together with the aggregate amount of Contingent Obligations permitted under subsection 7.4(vii) shall at no time exceed $10,000,000;
(viiivii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time the sum of $25,000,0002,000,000;
(ixviii) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries (a) in connection with such officers’ or employees’ acquisition of shares of Company’s Holdings’ Capital Stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligationsobligations or (b) otherwise not in excess of $2,500,000 at any one time outstanding;
(xix) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xix) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;; and
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xivxi) Company and its Subsidiaries may make Investments in Holdings to the Investments described extent necessary to permit Holdings to redeem all outstanding shares of the Holdings Perpetual Preferred Stock and all outstanding options to purchase the Holdings Perpetual Preferred Stock, in Schedule 7.3B annexed heretoan amount equal to the redemption price thereof (including any redemption premium), to pay the unpaid dividends thereon and to pay the IPO Fees payable directly by Holdings; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timethe IPO proceeds contributed by Holdings to Company plus $5,500,000.
Appears in 1 contract
Investments; Acquisitions. Neither the Company shall not, and shall not permit nor any of its Subsidiaries to, directly or indirectly, will make or own acquire any Investment in any Person, including Person or make 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 Person, or any division or line of business of any Person exceptAcquisition other than:
(ia) Investments existing on the date hereof by the Company and its Subsidiaries may make in their Subsidiaries and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, by the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own after the Investments owned by them as date hereof in Consolidated Subsidiaries of the Closing Date Company in furtherance of the Company Company's business, provided all Material Subsidiaries are then Guarantors hereunder and in any all Equity Interests of all Material Subsidiaries of Company (and may convert any such Investments in are then pledged pursuant to the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary GuarantorPledge Agreement;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v)Temporary Cash Investments;
(ivc) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted loans made by subsection 7.8the Meldisco Corporations (as defined in the Kmart Agreement) to Kmart Corporation, in an aggregate amount up to 49% of the cash balances of the Meldisco Corporations exceeding $1,000,000 as required by the Kmart Agreement;
(vd) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto any Acquisition provided (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (ai) no Potential Event of Default exists or Event of Default shall have occurred and would reasonably be continuing at the time such acquisition occurs or immediately after giving effect theretolikely to result therefrom, (bii) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisitionAcquisition, the Company and its Subsidiaries shall will be in Pro Forma Compliancecompliance with the provisions of Sections 5.16, 5.17, 5.18 and 5.19, both before, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition Acquisition calculated on a pro forma basis as of the end and for the most recently ended four-quarter period prior to the date of such Acquisition, (iii) the target of such Acquisition is engaged in lines of business similar to those of the Company and its Subsidiaries, and (iv) the aggregate consideration for all Acquisitions in any related transactionsfiscal year of the Company does not exceed $125,000,000; provided, is however, the common capital stock of the Company may be used as consideration for such Acquisitions and shall not less than be included in, or subject to, such $25,000,000125,000,000 limitation;
(viie) so long Investments existing as no Event of Default has occurred and is continuing, the date hereof in Persons listed in Schedule 5.09;
(f) Investments acquired by any Borrower or Guarantor in furtherance of their business for which the Company and its Subsidiaries may make additional Investments made no pecuniary Investment, but which were acquired in any Subsidiary that is not a Subsidiary Guarantor; provided that exchange for the amount granting of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions licenses or other cash returns on such share capital) in interests relating to intangible assets of the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000Subsidiaries; and
(xvg) any cash, loan, advance or similar pecuniary Investment by the Company not otherwise permitted by the foregoing clauses of this Section (including without limitation Investments by Company after the date hereof in Subsidiaries which are not Consolidated Subsidiaries) if, immediately after such Investment is made or any Subsidiary Guarantor in any acquired, the aggregate net book value of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with all Investments permitted pursuant to the foregoing by this clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith g) does not (a) exceed zero after 15% of the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeCompany's Consolidated Tangible Net Worth.
Appears in 1 contract
Samples: Credit Agreement (Footstar Inc)
Investments; Acquisitions. Company and Borrowers shall not, and shall not permit any of its or their Restricted Subsidiaries to, directly or indirectly, make or own any Investment in any Person, including any Joint Venture, Person or acquire, by purchase or otherwise, all or substantially all the business, property or fixed assets of, or Capital Stock or other ownership interest of any Person, or any division or line of business of any Person (each such acquisition, an “Acquisition”) except:
(i) Company and its Restricted Domestic Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and in Cash Equivalents permitted and the Restricted Foreign Subsidiaries may make and own Investments in Cash Equivalents and short term investments similar to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysCash Equivalents customarily used in the countries in which they are located;
(ii) Company and its Restricted Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Restricted Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock)Company, and Company and its Restricted Subsidiaries may make and own additional equity Investments in the Company Loan Parties (other than OI Europe or any Subsidiary GuarantorO-I Canada), and Restricted Subsidiaries that are not Loan Parties may make and own additional equity investments in other non-Loan Parties;
(iii) Company and its Restricted Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(vSection 8.1(iv);
(iv) Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted continue to own the Investments owned by subsection 7.8them and described in Schedule 8.3 annexed hereto;
(v) Company and its Restricted Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto make Acquisitions (and Company and its Restricted Domestic Subsidiaries may make incremental Investments contemplated in connection therewithRestricted Foreign Subsidiaries necessary to consummate any such Acquisition) so long as immediately after giving effect to such Acquisition, (i) the Borrowers are in compliance with the financial covenant set forth in Article IX as of the last day of the Fiscal Quarter most recently ended calculated on a Pro Forma Basis after giving effect to such Acquisition; provided, that the determination of compliance for this Section 8.3(v)(i) may be made as of either the signing of the acquisition or purchase agreement or the closing of such Acquisition at the Borrowers’ option; and any extension or renewal thereof; provided that any additional Investments made (ii) with respect thereto shall be permitted only to any Acquisition for which the extent such Investments are described on Schedule 7.3A or made purchase consideration is in accordance with excess of $100,000,000, the other provisions of this subsection 7.3Total Available Revolving Commitment is at least $150,000,000;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Restricted Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investmentstheir respective Restricted Foreign Subsidiaries;
(viiivii) Company and its Restricted Subsidiaries may make and own other Investments arising in an aggregate amount not to exceed connection with Commodities Agreements entered into in accordance with current industry practice (at the time of making any time $25,000,000such Investment) or the past practices of Company and its Restricted Subsidiaries;
(ixviii) Company may acquire and hold obligations of one or more officers or other employees of Company or its Restricted Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s Capital StockHoldings’ common stock, so long as no cash is actually advanced by Company or any of its Restricted Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xix) Company and its Restricted Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale or other sales of assets permitted by subsection 7.7Section 8.7;
(xix) Company and its Restricted Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Restricted Subsidiaries or as security for any such Indebtedness or claim;
(xi) In addition to Investments permitted by the other clauses of this Section, Company and its Restricted Subsidiaries may make and own other Investments (including Investments in Unrestricted Subsidiaries) after the Closing Date so long as (a) no Event of Default or Unmatured Event of Default has occurred and is continuing or would result therefrom and (b) Company and its Restricted Subsidiaries are in compliance with the covenant set forth in Article IX (but without giving effect to any increase in the level set forth therein in any Trigger Quarter or any subsequent Fiscal Quarter in which such increase applies) as of the last day of the Fiscal Quarter most recently ended calculated on a Pro Forma Basis after giving effect to such Investment; provided that during a Trigger Quarter and any subsequent Fiscal Quarter in which an increase to the financial covenant level set forth in Article IX applies, Investments permitted by this clause (xi) shall increase by $250,000,000 less the aggregate amount of Restricted Payments made as of such date of determination pursuant to the proviso to Section 8.5(vi);
(xii) other Investments made after the Closing Date not constituting Acquisitions not in excess of $250,000,000 at any transaction permitted by subsections 7.5 or 7.7;time outstanding; and
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Restricted Subsidiaries may make the Investments enter into and consummate transactions described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is madeSections 8.7(i) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xvix)) at any time.
Appears in 1 contract
Investments; Acquisitions. Company Each of Parent and Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company Parent and its Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and in Cash Equivalents permitted (and may continue to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive dayshold such Investments notwithstanding that such Investments may no longer qualify as a Cash Equivalent);
(ii) Company Parent may make the Equity Contribution to Borrower on or before the Restatement Date and Parent and its Subsidiaries may continue to own the Investments owned by them as of the Closing Restatement Date in the Company and in any Subsidiaries of Company (Parent, Parent may make and may convert any such own additional equity Investments in the form of Indebtedness into Borrower and Borrower and Subsidiary Guarantors may make and own additional equity Investments in the form of Capital Stock), and Company their respective Subsidiary Guarantors;
(iii) Borrower and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company Borrower and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company Borrower and its Subsidiaries may continue to own the Investments owned by them on the Restatement Date and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company Borrower and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantortheir respective wholly-owned Foreign Subsidiaries; provided that (a) the amount of all such Investments constituting equity Investments (other than any such equity Investments made in connection with the consummation of the Aluma Acquisition) does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after 20,000,000 in the aggregate for all such Investments since the Closing Date in respect and (b) the amount of all such Investments constituting loans or advances permitted under subsection 7.1(iv) (A) Investments other than any such loans or advances made in such Subsidiary that is connection with the consummation of the Aluma Acquisition) does not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) exceed $20,000,000 in the aggregate outstanding principal amount at any time for all such Investmentsoutstanding;
(viiivii) Company Borrower and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,00020,000,000;
(ixviii) Company Borrower may acquire and hold obligations of one or more officers or other employees of Company Borrower or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of CompanyParent’s Capital Stock, so long as no cash is actually advanced by Company common stock in an aggregate amount at any time outstanding not to exceed $7,500,000 (to the extent that such acquisition and holding do not violate any applicable law or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligationsregulation);
(xix) Company Borrower and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xix) Company Borrower and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company Borrower or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xi) after the Restatement Date, Borrower and its Subsidiaries may consummate Permitted Acquisitions upon the satisfaction of the following conditions:
(a) on the date of consummation of such acquisition (such date being the "Permitted Acquisition Closing Date" for such acquisition), EBITDA attributable to the New Business or Person so acquired shall have a positive EBITDA for the four Fiscal Quarter period most recently ended (calculated, as applicable, in accordance with the definition of "EBITDA" herein and clause (iv) of the definition of "Pro Forma Basis"); provided, however, that the satisfaction of the condition contained in this clause (a) shall not be required in connection with any Permitted Acquisition in which the aggregate consideration paid by Borrower and its Subsidiaries is less than $15,000,000;
(b) Borrower shall have complied with the requirements of subsections 6.8 and 6.9, to the extent applicable, on or promptly following the Permitted Acquisition Closing Date;
(c) Borrower shall have delivered a disclosure statement updating each of the schedules to this Agreement and the other Loan Documents to reflect any factual revisions or modifications to the information set forth therein resulting from such acquisition; provided that any such update which alters the substantive effect of any representation or warranty, covenant or any other term or condition of this Agreement or any other Loan Document or which discloses an event or circumstance that, in any case, would otherwise require the consent of Administrative Agent, Requisite Lenders or Lenders to such modification, event or circumstance, shall not constitute a modification of this Agreement or any other Loan Document or a permitted disclosure hereunder or thereunder, and shall not excuse any Event of Default or Potential Event of Default which may otherwise arise in connection therewith, without written consent required hereunder of Administrative Agent, Requisite Lenders or Lenders, as the case may be;
(d) the sum of (1) the aggregate amount of Cash consideration paid by Borrower and its Subsidiaries for Permitted Acquisitions permitted in reliance on this subsection 7.3(xi) and (2) the aggregate amount of Indebtedness assumed or created in connection with any such Permitted Acquisitions permitted in reliance on this subsection 7.3(xi), shall not exceed $40,000,000 in any Fiscal Year; provided, that such maximum amount for any Fiscal Year shall be increased by an amount equal to the lesser of (I) the excess of the maximum amount for the previous Fiscal Year (determined after giving effect to any increase under this proviso) over such sum for the previous Fiscal Year and (II) $10,000,000;
(e) after giving effect to such acquisition, (1) Borrower and its Subsidiaries shall not be engaged in any business not permitted by subsection 7.11, (2) Borrower shall be in compliance on a pro forma basis after giving effect to such acquisition (and any Indebtedness incurred in connection therewith) with each of the financial covenants contained in subsection 7.6, (3) no Event of Default or Potential Event of Default shall have occurred and be continuing or would result from such acquisition, and (4) Borrower shall have delivered to Administrative Agent an Officer’s Certificate to the effect set forth in the foregoing clauses (1) through (3) and a Compliance Certificate to evidence clause (2);
(f) (x) prior to the consummation of any Permitted Acquisition having EBITDA attributable to the New Business or Person so acquired (calculated, as applicable, in accordance with the definition of "EBITDA" herein or such other definition of EBITDA as may be reasonably acceptable to Administrative Agent for the four Fiscal Quarter period most recently ended prior to the Permitted Acquisition Closing Date (the "Relevant Period")) equal to or greater than (A) 5% of EBITDA of Parent and its Subsidiaries (calculated without giving effect to such Permitted Acquisition) for the Relevant Period or (B) 10% of the total consolidated revenues of Parent and its Subsidiaries (calculated without giving effect to such Permitted Acquisition) for the Relevant Period, Borrower shall deliver to Administrative Agent a copy, prepared in conformity with GAAP (subject to year-end adjustments and the absence of footnotes), of audited financial statements of the Person or New Business so acquired as of the last day of the Relevant Period and (y) prior to the consummation of any Permitted Acquisition having EBITDA attributable to the New Business or Person so acquired (calculated, as applicable, in accordance with the definition of "EBITDA" herein or such other definition of EBITDA as may be reasonably acceptable to Administrative Agent for the Relevant Period) less than (A) 5% of EBITDA of Parent and its Subsidiaries (calculated without giving effect to such Permitted Acquisition) for the Relevant Period or (B) 10% of total consolidated revenues of Parent and its Subsidiaries (calculated without giving effect to such Permitted Acquisition) for the Relevant Period, Borrower shall deliver to Administrative Agent a copy, prepared in conformity with GAAP (subject to year-end adjustments and the absence of footnotes), of reviewed financial statements of the Person or New Business so acquired as of the last day of the Relevant Period; and
(g) on or before the Permitted Acquisition Closing Date, Lenders shall have received from Borrower such other documents and information (including financial information) in respect of such Permitted Acquisition and New Business as any Lender may reasonably request;
(xii) any transaction permitted by subsections 7.5 or 7.7;Borrower may consummate the Aluma Acquisition; and
(xiii) deposits, prepayments Borrower may purchase the Sponsor Preferred Stock from the Sponsor (a) so long as no Event of Default or Potential Event of Default shall have occurred and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of be continuing on the date each such Investment is to be made) shall not exceed $42,000,000; and
(xv) Investments by Company , nor would an Event of Default or any Subsidiary Guarantor in any Potential Event of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following Default result from the making of such cash Investment Investment, with the Net Debt Securities Proceeds of any Permitted Additional Subordinated Financing permitted under subsection 7.1(xi)(a), for a purchase price not to exceed the sum of (w) the aggregate liquidation preference thereof, plus (x) any and all dividends accrued through such date and not previously paid to the Sponsor, plus (y) any and all redemption premiums and any and all other amounts that would have been due and payable to the Sponsor if the Sponsor Preferred Stock was redeemed on the date of purchase, plus (z) any and all related fees and expenses, or (b) otherwise in any event exceed $50,000,000 (taken together with an aggregate amount in lieu of, and not in excess of the amount of, Restricted Junior Payments permitted to be made under clause (vi)(2) of all other cash Investments then outstanding under this the proviso to subsection 7.3(xv)) at any time7.5.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 150,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections subsection 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.
Appears in 1 contract
Samples: Credit Agreement (Hexcel Corp /De/)
Investments; Acquisitions. Company and Borrowers shall not, and shall not permit any of its or their Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person (each such acquisition, an “Acquisition”) except:
(i) Company and its Domestic Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and in Cash Equivalents permitted and the Foreign Subsidiaries may make and own Investments in Cash Equivalents and short term investments similar to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysCash Equivalents customarily used in the countries in which they are located;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Second Restatement Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock)Company, and Company and its Domestic Subsidiaries may form new wholly-owned Domestic Subsidiaries and make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries and Foreign Subsidiaries may form new wholly-owned Foreign Subsidiaries and make and own additional equity investments in their respective wholly-owned Foreign Subsidiaries;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v6.1(iv); provided, that the aggregate amount of such intercompany loans made in cash by Loan Parties (other than Avir or O-I Canada) to non-Loan Parties, Avir or O-I Canada from and after the Second Restatement Date and outstanding at any time shall not exceed $500,000,000 minus the amount of Investments made by Loan Parties (other than Avir or O-I Canada) in non-Loan Parties, Avir or O-I Canada pursuant to subsection 6.3(vi) from and after the Second Restatement Date;
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 6.3 annexed hereto and make the Investments contemplated by Schedule 6.3;
(v) Company, its Domestic Subsidiaries and the other Loan Parties (other than Avir and O-I Canada) may make incremental Investments contemplated in connection therewith) and any extension or renewal thereofAcquisitions; provided that aggregate consideration paid or given (including, without limitation, cash paid, Acquired Indebtedness or assumed Indebtedness and the value of any additional Investments made other consideration paid or given, other than Capital Stock of Holdings issued in connection with respect thereto such Acquisition) for all Acquisitions after the Second Restatement Date does not exceed $250,000,000; provided further that Company and Domestic Borrowers shall be permitted only comply with and shall cause their Subsidiaries to comply with subsections 5.9 and 5.10 hereof; and provided still further that upon from and after the extent first such Investments are described on Schedule 7.3A or made in accordance with date that the Consolidated Leverage Ratio is less than 3.5:1, Company, its Domestic Subsidiaries and the other provisions Loan Parties (other than Avir and O-I Canada) may make additional Acquisitions such that the aggregate consideration paid or given for all Acquisitions (including those made after the Second Restatement Date and prior to such first such date) does not exceed $500,000,000; provided, still further, that such Acquisitions may not be financed through the issuance of this subsection 7.3;Indebtedness at any time any Tranche D Term Loans are outstanding.
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed make additional Investments in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (their respective Foreign Subsidiaries; provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund all such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets Investments made after the acquisition thereof; provided that (a) no Potential Event Second Restatement Date minus the aggregate amount of Default or Event of Default shall have occurred all cash dividends, distributions and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed cash payments actually received by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries (other than Foreign Subsidiaries) from their respective Foreign Subsidiaries after the Second Restatement Date, shall be in Pro Forma Compliance, not exceed $250,000,000; and (e) provided still further that upon and from and after the amount by which (1) first such date that the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, Consolidated Leverage Ratio is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing3.5:1, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided their respective Foreign Subsidiaries such that the aggregate amount for all such Investments (including those made after the Second Restatement Date and prior to such first such date) minus the aggregate amount of all cash dividends, distributions and other cash payments actually received by Company and its Subsidiaries (other than Foreign Subsidiaries) from their respective Foreign Subsidiaries after the Second Restatement Date (including those received after the Second Restatement Date and prior to such Investments first such date) does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments500,000,000;
(viiivii) Company and its Subsidiaries may make and own other Investments arising in an aggregate amount not to exceed connection with Commodities Agreements entered into in accordance with current industry practice (at the time of making any time $25,000,000such Investment) or the past practices of Company and its Subsidiaries;
(ixviii) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s Capital StockHoldings’ common stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xix) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale or other sales of assets permitted by subsection 7.76.7;
(xix) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xi) Foreign Subsidiaries of Company other than Offshore Borrowers (except Avir and O-I Canada) and Offshore Guarantors may make Investments, Acquisitions and acquire assets (including Capital Stock and including Capital Stock of Foreign Subsidiaries other than Offshore Borrowers and Offshore Guarantors formed in connection with any such acquisition); provided that, such Acquisitions may not be financed through the issuance of Indebtedness at any time any Tranche D Term Loans are outstanding.
(xii) Company and its Subsidiaries may make and own additional Investments in Joint Ventures made after the Second Restatement Date in an aggregate amount not to exceed at any transaction permitted by subsections 7.5 or 7.7time $100,000,000;
(xiii) depositsIn addition to Investments permitted by the other clauses of this subsection, prepayments Company and extensions of trade credit its Subsidiaries may make and own other Investments in the ordinary course of businessan aggregate amount not to exceed at any time $125,000,000;
(xiv) Company and its Subsidiaries may make consummate the BSN Acquisition in accordance with the BSN Share Purchase Agreement;
(xv) Company and its Subsidiaries may enter into and consummate transactions described in subsection 6.7(i) and 6.7(x);
(xvi) BSN and its Subsidiaries may continue to own the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined owned by them as of the date each such Investment is made) shall not exceed $42,000,000BSN Acquisition Closing Date; and
(xvxvii) Investments by Company Xxxxx-Xxxxxxxx and its Subsidiaries may contribute and/or loan the proceeds of the Domestic Tranche C Term Loans and the Tranche D Term Loans to its Subsidiaries so as to permit one or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making more of such cash Investment and (b) Subsidiaries to pay the purchase price for the Acquisition in any event exceed $50,000,000 (taken together accordance with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeSection 2.5.
Appears in 1 contract
Samples: Secured Credit Agreement (Owens Illinois Group Inc)
Investments; Acquisitions. Company Borrowers shall not, and shall not permit any of its their respective Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Domestic Subsidiaries may make and own Investments consisting in Domestic Cash Equivalents and in such investments as are permitted under the terms of the agreement establishing the Cash Collateral Account, as such agreement is in effect on the Closing Date and as it may be amended or supplemented from time to time thereafter with the consent of Agents; and Company's Foreign Subsidiaries may make and own Investments in Foreign Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), Company; and Company and its Subsidiaries may make and own additional equity Investments after the Closing Date in other Borrowers solely to the Company extent such Investments represent amounts advanced or any Subsidiary Guarantorinvested for purposes of making expenditures permitted under subsection 7.6A or making other Investments permitted under this subsection 7.3;
(iii) Company and its Subsidiaries may (a) become liable continue to own the Investments owned by them on the Petition Date and described in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v)Schedule 7.3 annexed hereto;
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(vand own Investments consisting of cash amounts advanced or contributed to those Projects set forth in Schedule 7.3(iv) annexed hereto to the extent Company and its Subsidiaries may continue are committed as of the Closing Date to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension such advances or renewal thereofcontributions; provided that any additional Investments (a) each such Investment (or commitment to make the same) made in connection with respect thereto such Projects shall be permitted only to in an amount not exceeding the extent amount set forth on such Investments are described on Schedule 7.3A Schedule, (b) the equity interests held by Company or made in accordance with the other provisions any of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire in any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries new Subsidiary formed in connection with any such acquisition) for an aggregate purchase price (determined at Investment shall be pledged as Collateral under the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital StockCollateral Documents, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely except to the extent such Net Securities Proceeds pledge is not required under subsection 6.8, and (c) the aggregate cash usage for such Projects in any period shall not exceed the amounts therefor set forth in the Monthly Budget for any such period;
(v) Borrowers may make intercompany loans to the extent permitted under subsection 7.1(iii);
(vi) Borrowers may, after the Closing Date, make and own Investments consisting of amounts advanced to Subsidiaries of Company that are not Borrowers, so long as the proceeds of such Investments are (a) applied for purposes of making expenditures permitted under subsection 7.6A and (b) not applied to increase make any Capital Expenditures except with respect to Projects of Company and its Subsidiaries in existence on the limit under subsection 7.8)), and continue to own such assets after the acquisition thereofClosing Date; provided that (ax) no Potential Event of Default or Event of Default nothing in this subsection 7.3(vi) shall have occurred be construed to permit Investments and be continuing at expenditures with respect to the time such acquisition occurs or immediately after giving effect thereto, (bProjects set forth in Schedule 7.3(iv) Company shallannexed hereto to exceed the amounts permitted under subsection 7.3(iv), and (y) each Investment in a Subsidiary of Company permitted under this subsection 7.3(vi) shall cause its Subsidiaries to, comply with be evidenced by an intercompany loan from a Borrower or Borrowers to such Subsidiary meeting the requirements of subsections 6.8 and 6.9 subsection 7.1(iv);
(within vii) Any Subsidiaries of Company (other than Loan Parties) may make acquisitions of assets or of equity interests in other Persons so long (x) as such acquisitions are financed solely with the time period required thereunder proceeds of Limited Recourse Debt of such Subsidiary and/or amounts (other than the proceeds of Indebtedness) received from Persons other than Company or within such other time period as Administrative Agent may permit any of its Subsidiaries (which amounts shall in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiaryno event include proceeds of Loans), (cy) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in Company provides to Agents all material respects contracts or other agreements entered into in connection with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto)any Investment, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (IIz) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be incur no Indebtedness, Contingent Obligation, Performance Guaranty or enter into any Contractual Obligation (contingent or otherwise) to incur Indebtedness, a Contingent Obligation, a Performance Guaranty or other similar obligation (including any obligation to procure or provide a performance bond, construction bond or surety bond) in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to connection with such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary Investment that is not a Subsidiary Guarantorotherwise permitted under this Agreement; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;and
(viii) Company and its Subsidiaries may make and own other involuntary Investments in an aggregate amount waste-to-energy Projects after the Closing Date to the extent such Investments consist solely of cash generated by such Projects which is not released to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection by the counterparties to the principal service agreements or operating agreements associated with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed heretoProjects; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is madea) Borrowers shall, and shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of cause their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to, use best efforts to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant cause such counterparties to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of release such cash Investment on a timely basis and (b) nothing in this subsection 7.3(viii) shall be construed as a waiver of any event exceed $50,000,000 (taken together with the amount rights of all other cash Investments then outstanding Agents or Lenders under this subsection 7.3(xv)) at Agreement or as a modification of any timeother provision of this Agreement.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Covanta Energy Corp)
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any other Person, or any division or line of business of any other Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments wholly-owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Domestic Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries;
(iii) Company and its Subsidiaries may make (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv), and (b) intercompany loans or other Investments in connection with the Acquisition including intercompany loans to UK Bidco to fund the repayment or prepayment of the UK Loan Notes and the existing loan notes of UK Target;
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own consummate the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made Acquisition in accordance with the other provisions terms and conditions of this subsection 7.3the Acquisition Agreement;
(vi) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3 annexed hereto;
(vii) Company and its Domestic Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) having a fair market value not in excess of $75,000,000 30,000,000 in any individual case (provided that such amount may be increased by one Fiscal Year and $80,000,000 in the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), aggregate and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Domestic Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (cb) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments pro forma compliance with all financial covenants after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(viic) so long as no Event of Default has shall have occurred and is continuingbe continuing prior to such acquisition or result from such acquisition;
(viii) any Foreign Subsidiary of Company may acquire assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) having a fair market value not in excess of $15,000,000 in any one Fiscal Year and $40,000,000 in the aggregate and continue to own such assets after the acquisition thereof; provided that (a) Company shall cause such Foreign Subsidiary to comply with the requirements of subsection 6.8 with respect to each such acquisition that results in a Person becoming a Subsidiary, (b) Company shall be in pro forma compliance with all financial covenants after giving effect to such acquisition and (c) no Event of Default have occurred and be continuing prior to such acquisition or result from such acquisition;
(ix) Company and its wholly-owned Domestic Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantortheir respective Foreign Subsidiaries; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 10,000,000 (net plus the amount of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company all loans or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capitaladvances permitted under subsection 7.1(iv)) in the aggregate outstanding at any time for all such InvestmentsInvestments since the Closing Date, including all Contingent Obligations of Company pursuant to subsections 7.4(viii) and (ix);
(viiix) Company and its Domestic Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,00010,000,000;
(ixxi) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with (i) such officers’ or employees’ acquisition of shares of Company’s Capital Stock, Holdings’ common stock (or the common stock of a parent entity of Holdings that directly owns 50% or more of the Voting Stock of Holdings) so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligationsobligations or (ii) in connection with the payment of income taxes on employee-owned stock of Holdings, Company or its Subsidiaries (in an aggregate amount during any Fiscal Year not in excess of $1,000,000);
(xxii) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xixiii) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries Subsidiaries, including Securities received in connection with the bankruptcy, insolvency or reorganization of the Person obligated on such Indebtedness or claim, or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make loans (financing equipment sold by Company and its Subsidiaries) or equipment leases to customers doing business with Company and its Subsidiaries in an aggregate principal amount not to exceed $40,000,000 (with the Investments described in Schedule 7.3B annexed heretoprincipal amount of such leases to be deemed to be equal to the discounted present value, at a market rate of interest, of the remaining rental payments plus any residual value of the leased equipment as shown on Company’s financial statements); provided that that, Company or such Subsidiary has filed appropriate UCC financing statements to protect its interest in all such financed equipment to the aggregate extent such equipment has, at the time of such transaction, a fair market value in excess of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,00030,000; and
(xv) Investments by Company and its Subsidiaries may make loans to customers doing business with Company and its Subsidiaries in settlement of accounts receivable owing to Company or any Subsidiary Guarantor of its Subsidiaries from such customer in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made an aggregate principal amount not to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) 15,000,000 at any one time.
Appears in 1 contract
Samples: Credit Agreement (FTD Group, Inc.)
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries Subsidiary Guarantors may make and own additional equity Investments in the Company or any Subsidiary GuarantorGuarantors;
(iii) Company and the Subsidiary Guarantors may make and own equity investments in Foreign Subsidiaries, provided that the amount of all such equity investments made from and after the Closing Date minus the amount of all cash dividends, distributions and other payments actually received by Company or any of the Subsidiary Guarantors in respect of such equity investments after the Closing Date (the “Net Foreign Equity Investment Amount”) shall not at any time exceed $50,000,000 minus the aggregate principal amount of Indebtedness outstanding under subsection 7.1(vi);
(iv) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(iv), 7.1(vi), 7.1(vii), 7.1(viii) and 7.1(x) and own those intercompany loans permitted under 7.1(v);
(ivv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(vvi) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000hereto;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,00020,000,000;
(viii) Foreign Subsidiaries may make and own Investments in other Foreign Subsidiaries;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s Holdings’ Capital Stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;Company may consummate the Acquisition in accordance with the terms of the Acquisition Agreement; and
(xiii) deposits, prepayments and extensions of trade credit in Company may consummate the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeHungarian Reorganization.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries Subsidiary Guarantors may make and own additional equity Investments in the Company or any and Subsidiary GuarantorGuarantors;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iii);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company may make additional Investments, in the equity or debt Securities of other Persons, directly or in the form of advances on royalty payments that Company expects would be due to it in due course in an aggregate amount for all such Investments and all Contingent Obligations permitted by subsection 7.4(v) not to exceed $5,000,000 at any time;
(vii) So long as no Event of Default shall have occurred and be continuing or would result either before or after giving effect thereto, Company and its Subsidiaries may from time to time acquire any business(each, division, line or a "Permitted Acquisition") assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event the target of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs (1) is in the same or immediately after giving effect theretorelated business as Company and its Subsidiaries and (2) has generated Consolidated EBITDA over the twelve month period ending prior to the date of acquisition of not less than negative $5,000,000, (b) the Cash consideration for any such acquisition shall not exceed $10,000,000 and the total consideration for any such acquisition shall not exceed $25,000,000, (c) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) deliver to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer demonstrating in reasonable detail pro forma compliance with the provisions of Company and demonstrating that subsection 7.6 after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ ' or employees’ ' acquisition of shares of Company’s 's Capital Stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xix) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xix) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xivxi) Company and its Subsidiaries may make consummate the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000Merger; and
(xvxii) Company may make Investments in Outsourcing Project Assets with the proceeds of Indebtedness permitted by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (bsubsection 7.1(v) in any event an aggregate amount not to exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time35,000,000.
Appears in 1 contract
Samples: Credit Agreement (Itron Inc /Wa/)
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 40,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock)Company, and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A 7.3 or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 50,000,000 in any individual case (provided that such amount may be increased by less the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)hereof), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection Subsection 7.1(v)) exceed $100,000,000 75,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xvxiv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock capital stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 25,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv7.3(xiv)) at any time.
Appears in 1 contract
Samples: Credit Agreement (Hexcel Corp /De/)
Investments; Acquisitions. Company Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 capital stock or other ownership interests of any Person, or any division or line of business of any Person except:
(i) Company Borrower and its Subsidiaries may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company Borrower and Guarantors may make and own additional Investments in Subsidiaries that are Guarantors or in Borrower; any Foreign Loan Party may make and own Investments in any other Foreign Loan Party in the same Approved Jurisdiction (except for Investments by any Australian Joy Loan Party in any Australian P&H Loan Party and any Investment by any Australian P&H Loan Party in any Australian Joy Loan Party, but only until such time as Harnischfeger of Australia Pty. Ltd. has complied with subsection 7.3(vi)(c)), in any other Foreign Subsidiary to the extent a part of the UK Restructuring or as otherwise permitted pursuant to subsection 7.1(iv); any Subsidiary which is not a Guarantor or Foreign Loan Party may make and own Investments in Borrower, any Guarantor and any Foreign Loan Party or any other Subsidiary which is not a Guarantor or a Foreign Loan Party; (iii) Borrower may make and own Intercompany Loans to Foreign Loan Parties to the extent permitted under subsection 7.1(iv); (iv) Borrower and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8; (v) Borrower and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3 annexed hereto; (vi) Borrower and its Subsidiaries may acquire the shares of Harnischfeger of Australia Pty. Ltd. not currently owned by Loan Parties for such consideration as of may be approved by Agent, which approval shall not be unreasonably delayed (the Closing Date in the Company “Australian Acquisition”); and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company Borrower and its Subsidiaries may make and own additional Investments in Permitted Acquisitions for which the Company or any Subsidiary Guarantor;
(iii) Company aggregate consideration paid by Borrower and its Subsidiaries may since the Closing Date (athe “Acquisition Consideration”) become liable including without limitation, the fair market value of all Cash, common stock of Borrower or other property paid or transferred, and the aggregate amount of all Indebtedness incurred or assumed in respect connection with such Permitted Acquisition or other liabilities assumed or incurred by Borrower or any of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans its Subsidiaries, in each case to the extent permitted under pursuant to subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described 7.1, shall not exceed $25,000,000 in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension one Fiscal Year or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in the aggregate (the “Maximum Acquisition Amount”); provided, however, that the Maximum Acquisition Amount for any individual case (provided that such amount may Fiscal Year shall be increased by an amount equal to 50% of the excess, if any, of the Maximum Acquisition Amount for the previous Fiscal Year (without giving effect to any adjustment made pursuant to this proviso) over the actual amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund Acquisition Consideration for such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) previous Fiscal Year; and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that further that: (a) prior to the consummation of the Australian Acquisition or any Permitted Acquisition, Borrower shall deliver to Agent (1) an Officer’s Certificate (x) certifying that no Potential Event of Default or Event of Default under the Loan Documents shall have occurred then exist or shall occur as a result of the Australian Acquisition or such Permitted Acquisition, and be continuing at the time such acquisition occurs or immediately (y) demonstrating that after giving effect theretoto such Permitted Acquisition and all Indebtedness to be incurred, assumed or repaid in connection with or as consideration for the Australian Acquisition or such Permitted Acquisition, Borrower and its Subsidiaries shall be in compliance on a Pro Forma Basis with the financial covenants set forth in subsection 7.6 for the four consecutive Fiscal Quarter period ending immediately prior to the date of the Australian Acquisition or the proposed Permitted Acquisition, and (2) such other materials and information as Agent may reasonably request; (b) Company Borrower shall, and shall cause its Subsidiaries to, (x) in the event of any Permitted Acquisition of another Person (other than Borrower or any of its Subsidiaries), make such acquired Person a Subsidiary of Borrower or any of its Subsidiaries or merge such Person with and into Borrower or any of its Subsidiaries, and (y) comply with the requirements of subsections 6.8 6.9 and 6.9 (within the time period required thereunder 6.10, including without limitation granting to Agent, on behalf of Lenders, a valid and perfected First Priority Lien on all such acquired assets or within other property; provided, however, that such other time period as Administrative Agent may permit in its sole discretion) valid and perfected First Priority Lien need not be granted with respect to each any assets or other property acquired in connection with any Permitted Acquisition to the extent such acquisition that results in a Person becoming a Material Subsidiary, assets or other property are subject to any Liens otherwise permitted under subsection 7.2A(iv); and (c) all representations and warranties contained herein and notwithstanding anything to the contrary in the other Loan Documents shall be true and correct this Agreement, if, at any time after or in all material respects connection with the same Australian Acquisition, Harnischfeger of Australia Pty. Ltd. becomes jointly and severally liable with the Australian Joy Loan Parties with respect to their obligations, with the effect of Harnischfeger of Australia Pty. Ltd. being treated for all purposes as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto)if it were an Australian Joy Loan Party under this Agreement, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which then (1) the Revolving Loan Commitment Amount exceeds Australian Joy Subsidiary Borrowing Limit shall be deemed to be increased by the then-current amount of the Australian P&H Subsidiary Borrowing Limit, (2) all defined terms in this Agreement containing the Total Utilization phrase “Australian P&H” (such as Australian P&H Loan Parties, Australian P&H Subsidiary Borrowing Base, and the like) and all references thereto shall be deemed to be deleted, (3) the definition of Revolving “Australian Loan Commitments after giving effect Parties” shall be deemed to such acquisition and any related transactionsbe deleted, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B4) all defined terms in this Agreement containing the share capital of phrase “Australian Joy” (such as Australian Joy Loan Parties, Australian Joy Subsidiary that is not a Subsidiary GuarantorBorrowing Base, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capitaland the like) in and all references thereto shall be deemed to delete the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeword “Joy” therefrom.
Appears in 1 contract
Samples: Credit Agreement (Joy Global Inc)
Investments; Acquisitions. Company and Borrowers shall not, and shall not permit any of its or their Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person (each such acquisition, an “Acquisition”) except:
(i) Company and its Domestic Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and in Cash Equivalents permitted and the Foreign Subsidiaries may make and own Investments in Cash Equivalents and short term investments similar to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysCash Equivalents customarily used in the countries in which they are located;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Second Restatement Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock)Company, and Company and its Domestic Subsidiaries may form new wholly-owned Domestic Subsidiaries and make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries and Foreign Subsidiaries may form new wholly-owned Foreign Subsidiaries and make and own additional equity investments in their respective wholly-owned Foreign Subsidiaries;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v6.1(iv); provided, that the aggregate amount of such intercompany loans made in cash by Loan Parties (other than Avir or O-I Canada) to non-Loan Parties, Avir or O-I Canada from and after the Second Restatement Date and outstanding at any time shall not exceed $500,000,000 minus the amount of Investments made by Loan Parties (other than Avir or O-I Canada) in non-Loan Parties, Avir or O-I Canada pursuant to subsection 6.3(vi) from and after the Second Restatement Date;
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 6.3 annexed hereto and make the Investments contemplated by Schedule 6.3;
(v) Company, its Domestic Subsidiaries and the other Loan Parties (other than Avir and O-I Canada) may make incremental Investments contemplated in connection therewith) and any extension or renewal thereofAcquisitions; provided that aggregate consideration paid or given (including, without limitation, cash paid, Acquired Indebtedness or assumed Indebtedness and the value of any additional Investments made other consideration paid or given, other than Capital Stock of Holdings issued in connection with respect thereto such Acquisition) for all Acquisitions after the Second Restatement Date does not exceed $250,000,000; provided further that Company and Domestic Borrowers shall be permitted only comply with and shall cause their Subsidiaries to comply with subsections 5.9 and 5.10 hereof; and provided still further that upon from and after the extent first such Investments are described on Schedule 7.3A or made in accordance with date that the Consolidated Leverage Ratio is less than 3.5:1, Company, its Domestic Subsidiaries and the other provisions of this subsection 7.3Loan Parties (other than Avir and O-I Canada) may make additional Acquisitions such that the aggregate consideration paid or given for all Acquisitions (including those made after the Second Restatement Date and prior to such first such date) does not exceed $500,000,000;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed make additional Investments in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (their respective Foreign Subsidiaries; provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund all such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets Investments made after the acquisition thereof; provided that (a) no Potential Event Second Restatement Date minus the aggregate amount of Default or Event of Default shall have occurred all cash dividends, distributions and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed cash payments actually received by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries (other than Foreign Subsidiaries) from their respective Foreign Subsidiaries after the Second Restatement Date, shall be in Pro Forma Compliance, not exceed $250,000,000; and (e) provided still further that upon and from and after the amount by which (1) first such date that the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, Consolidated Leverage Ratio is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing3.5:1, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided their respective Foreign Subsidiaries such that the aggregate amount for all such Investments (including those made after the Second Restatement Date and prior to such first such date) minus the aggregate amount of all cash dividends, distributions and other cash payments actually received by Company and its Subsidiaries (other than Foreign Subsidiaries) from their respective Foreign Subsidiaries after the Second Restatement Date (including those received after the Second Restatement Date and prior to such Investments first such date) does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments500,000,000;
(viiivii) Company and its Subsidiaries may make and own other Investments arising in an aggregate amount not to exceed connection with Commodities Agreements entered into in accordance with current industry practice (at the time of making any time $25,000,000such Investment) or the past practices of Company and its Subsidiaries;
(ixviii) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s Capital StockHoldings’ common stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xix) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale or other sales of assets permitted by subsection 7.76.7;
(xix) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xi) Foreign Subsidiaries of Company other than Offshore Borrowers (except Avir and O-I Canada) and Offshore Guarantors may make Investments, Acquisitions and acquire assets (including Capital Stock and including Capital Stock of Foreign Subsidiaries other than Offshore Borrowers and Offshore Guarantors formed in connection with any such acquisition);
(xii) Company and its Subsidiaries may make and own additional Investments in Joint Ventures made after the Second Restatement Date in an aggregate amount not to exceed at any transaction permitted by subsections 7.5 or 7.7time $100,000,000;
(xiii) depositsIn addition to Investments permitted by the other clauses of this subsection, prepayments Company and extensions of trade credit its Subsidiaries may make and own other Investments in the ordinary course of businessan aggregate amount not to exceed at any time $125,000,000;
(xiv) Company and its Subsidiaries may make the Investments enter into and consummate transactions described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is madesubsection 6.7(i) shall not exceed $42,000,000; andand 6.7(x);
(xv) BSN and its Subsidiaries may continue to own the Investments owned by Company or any Subsidiary Guarantor in any them as of their respective the BSN Acquisition Closing Date;
(xvi) Xxxxx-Xxxxxxxx and its Subsidiaries (1) consisting of Capital Stock and/or intercompany notes may continue to own the Investments made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount proceeds of all other cash Investments then outstanding under this subsection 7.3(xv)“Domestic Tranche C Term Loans” and “Tranche D Term Loans” (each as defined in the Second Amended and Restated Credit Agreement) at any time.on the BSN Acquisition Closing Date; and
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any other Person, or any division or line of business of any other Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments wholly-owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Domestic Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries;
(iii) Company and its Subsidiaries may make (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv), and (b) intercompany loans or other Investments in connection with the Acquisition including intercompany loans to UK Bidco to fund the repayment or prepayment of the UK Loan Notes and the existing loan notes of UK Target;
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own consummate the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made Acquisition in accordance with the other provisions terms and conditions of this subsection 7.3the Acquisition Agreement;
(vi) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3 annexed hereto;
(vii) Company and its Domestic Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) having a fair market value not in excess of $75,000,000 30,000,000 in any individual case (provided that such amount may be increased by one Fiscal Year and $80,000,000 in the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), aggregate and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Domestic Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (cb) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments pro forma compliance with all financial covenants after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(viic) so long as no Event of Default has shall have occurred and is continuingbe continuing prior to such acquisition or result from such acquisition;
(viii) any Foreign Subsidiary of Company may acquire assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) having a fair market value not in excess of $15,000,000 in any one Fiscal Year and $40,000,000 in the aggregate and continue to own such assets after the acquisition thereof; provided that (a) Company shall cause such Foreign Subsidiary to comply with the requirements of subsection 6.8 with respect to each such acquisition that results in a Person becoming a Subsidiary, (b) Company shall be in pro forma compliance with all financial covenants after giving effect to such acquisition and (c) no Event of Default have occurred and be continuing prior to such acquisition or result from such acquisition;
(ix) Company and its wholly-owned Domestic Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantortheir respective Foreign Subsidiaries; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 10,000,000 (net plus the amount of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company all loans or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capitaladvances permitted under subsection 7.1(iv)) in the aggregate outstanding at any time for all such InvestmentsInvestments since the Closing Date, including all Contingent Obligations of Company pursuant to subsections 7.4(viii) and (ix);
(viiix) Company and its Domestic Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,00010,000,000;
(ixxi) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with (i) such officers’ or employees’ acquisition of shares of Company’s Capital Stock, Holdings’ common stock (or the common stock of a parent entity of Holdings that directly owns 50% or more of the Voting Stock of Holdings) so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligationsobligations or (ii) in connection with the payment of income taxes on employee-owned stock of Holdings, Company or its Subsidiaries (in an aggregate amount during any Fiscal Year not in excess of $1,000,000);
(xxii) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xixiii) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries Subsidiaries, including Securities received in connection with the bankruptcy, insolvency or reorganization of the Person obligated on such Indebtedness or claim, or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make loans (financing equipment sold by Company and its Subsidiaries) or equipment leases to customers doing business with Company and its Subsidiaries in an aggregate principal amount not to exceed $40,000,000 (with the Investments described in Schedule 7.3B annexed heretoprincipal amount of such leases to be deemed to be equal to the discounted present value, at a market rate of interest, of the remaining rental payments plus any residual value of the leased equipment as shown on Company’s financial statements); provided that that, Company or such Subsidiary has filed appropriate UCC financing statements (or has taken such other equivalent actions in any other applicable jurisdiction) to protect its interest in all such financed equipment to the aggregate extent such equipment has, at the time of such transaction, a fair market value in excess of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,00030,000 on a per customer basis; and
(xv) Investments by Company and its Subsidiaries may make loans to customers doing business with Company and its Subsidiaries in settlement of accounts receivable owing to Company or any Subsidiary Guarantor of its Subsidiaries from such customer in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made an aggregate principal amount not to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) 15,000,000 at any one time.
Appears in 1 contract
Samples: Credit Agreement (FTD Group, Inc.)
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided thatin Cash, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted and Investment Grade Securities and may enter into repurchase agreements and reverse repurchase agreements with any Lender or any primary dealer of United States government Securities relating to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period Investment Grade Securities maturing within two years from the date of five (5) consecutive daysacquisition thereof;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may (a) make Capital Contributions in any Regulated Subsidiary and make capital contributions to the Regulated Subsidiaries of amounts which would otherwise be restricted assets of Company under the terms of Company's tax-sharing agreement with the Regulated Subsidiaries and, in either case, own any resulting additional equity Investments and (b) make and own additional equity Investments in the Company or any Subsidiary GuarantorGuarantor that is not a Regulated Subsidiary;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company and its Subsidiaries may acquire any business, division, line make Permitted Acquisitions and own the assets so acquired in one or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) more transactions for an aggregate purchase price consideration (determined at including the time principal amount of purchase thereofany Indebtedness assumed as permitted by subsection 7.1(viii)) not in excess of $75,000,000 in any individual case (100,000,000 for all Permitted Acquisitions; provided that such amount Company and its Subsidiaries may be increased by the amount make Permitted Acquisitions for an aggregate consideration in excess of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof $100,000,000 (and, in determining compliance with respect to any this covenant, after such Net Securities Proceedsaggregate consideration equals or exceeds $100,000,000) if, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect theretoto the payment of such consideration (and the principal amount of assumed Indebtedness), (b) Available Cash equals $1.00 or more; provided further that, in any Permitted Acquisition, Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections subsection 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not if, after giving effect to exceed at any time the making of such Investment, Available Cash equals $25,000,0001.00 or more;
(ixviii) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with (a) such officers’ ' or employees’ ' acquisition of shares of Company’s Capital Stock's common stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations, (b) loans and advances in the ordinary course of business for travel, relocation and similar purposes and (c) other loans and advances to employees in the ordinary course of business pursuant to employment agreements or otherwise;
(xix) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(x) Company and its Subsidiaries may endorse negotiable instruments for collection in the ordinary course of business; 91
(xi) Company and its Subsidiaries may make and own Investments consisting of performance bonds and letters of credit and other similar surety devices obtained to support, or in lieu of, performance bonds, in each case entered into in the ordinary course of business; and
(xii) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or Subsidiaries, as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 claim or 7.7;
(xiii) deposits, prepayments and extensions in consideration of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; services or other non-cash value provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any one of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeits Subsidiaries.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries Subsidiary Guarantors may make and own additional equity Investments in the Company or any Subsidiary GuarantorGuarantors;
(iii) Company and the Subsidiary Guarantors may make and own equity investments in Foreign Subsidiaries, provided that the amount of all such equity investments made from and after the Closing Date minus the amount of all cash dividends, distributions and other payments actually received by Company or any of the Subsidiary Guarantors in respect of such equity investments after the Closing Date (the “Net Foreign Equity Investment Amount”) shall not at any time exceed $50,000,000 minus the aggregate principal amount of Indebtedness outstanding under subsection 7.1(viii);
(iv) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv), 7.1(vii), 7.1(viii), 7.1(ix) and 7.1(x);
(ivv) Company and its Subsidiaries may consummate the Domestic Merger and the Foreign Mergers in accordance subsection 6.12;
(vi) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(vvii) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investmentshereto;
(viii) US Holdco I may make and own equity Investments in its Foreign Subsidiaries on the Closing Date the proceeds of which are to be utilized to consummate the Foreign Acquisitions in an aggregate amount not to exceed $25,000,000 minus the amount of Indebtedness incurred pursuant to 7.1(vii);
(ix) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,00015,000,000;
(ixx) Foreign Subsidiaries may make and own Investments in other Foreign Subsidiaries;
(xi) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s Holdings’ Capital Stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xxii) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;; and
(xixiii) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits. For certainty, prepayments and extensions neither the acquisition nor the retirement of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred Senior Notes in connection with Investments permitted pursuant any exchange of exchange notes therefor (containing substantially identical terms (except that such exchange notes will not contain certain terms with respect to transfer restrictions or the accrual of liquidated damages) to the foregoing clause (1Senior Notes), in each case so long as contemplated by the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeSenior Note Indenture, shall constitute an Investment.
Appears in 1 contract
Samples: Credit Agreement (Propex International Holdings II Inc.)
Investments; Acquisitions. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(ia) the Company and its Restricted Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, ;
(b) (i) the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its wholly-owned Domestic Subsidiaries shall not exceed $35,000,000 for any period may make and own additional equity Investments in their respective wholly-owned Domestic Subsidiaries (other than Unrestricted Subsidiaries) and in Domestic Subsidiaries (other than Unrestricted Subsidiaries) that become wholly-owned as a result of five or in connection with such Investments and (5ii) consecutive daysForeign Subsidiaries may make and own additional equity Investments in other Foreign Subsidiaries;
(iic) the Company and its Restricted Subsidiaries may make Investments in the form of intercompany Indebtedness permitted by Section 8.01(d);
(d) the Company and its Restricted Subsidiaries may continue to own the Investments owned by them as of the Closing Date and described in Schedule 8.03;
(e) the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Restricted Subsidiaries may make and own additional Investments (i) the Bloom Acquisition so long as the conditions set forth in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 Section 5.04 are satisfied and (bii) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets Permitted Acquisitions (including Capital Stock and including the acquisition of the Capital Stock of Restricted Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8Permitted Acquisition)), and continue to own such assets after the acquisition thereof; provided that in the case of this subclause (aii), (A) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (bB) the Company shall, and shall cause its Restricted Subsidiaries to, comply with the requirements of subsections 6.8 Sections 7.08 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) 7.09 with respect to each Person acquired or Person formed to acquire the assets of another Person to the extent such acquisition that results in a Person becoming a Material Subsidiaryrequirements are applicable to such Person, (cC) all representations and warranties contained herein and in the other Loan Documents Company shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Pro Forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in (D) the Consolidated Net Leverage Ratio, calculated on a Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments Basis after giving effect to such acquisition and any related transactionsacquisition, is not shall be at least 0.25 to 1.00 less than $25,000,000the otherwise applicable maximum Consolidated Net Leverage Ratio permitted by Section 8.06(a);
(viif) so long as no Event of Default has occurred and is continuing, the Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Restricted Subsidiaries may receive and hold promissory notes and other non-cash Cash consideration received in connection with any Asset Sale permitted by subsection 7.7Section 8.07;
(xig) the Company and its Restricted Subsidiaries may acquire and hold Securities or Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to the Company or any of its Subsidiaries Restricted Subsidiaries, including Securities or Investments received in connection with the bankruptcy, insolvency or reorganization of the Person obligated on such Indebtedness or claim, or as security for any such Indebtedness or claim;
(xiih) the Company and its Restricted Subsidiaries may make loans (financing equipment sold by the Company and its Restricted Subsidiaries) or equipment leases to customers doing business with the Company and its Restricted Subsidiaries in an aggregate principal amount not to exceed $40,000,000 at any transaction permitted by subsections 7.5 or 7.7time outstanding (with the principal amount of such leases to be deemed to be equal to the discounted present value, at a market rate of interest, of the remaining rental payments plus any residual value of the leased equipment as shown on the Company’s financial statements);
(xiiii) depositsthe Company and its Restricted Subsidiaries may make loans to customers doing business with the Company and its Restricted Subsidiaries in settlement of accounts receivable owing to the Company or any of its Restricted Subsidiaries from such customer in an aggregate principal amount not to exceed $15,000,000 at any time outstanding;
(j) the Company and its Restricted Subsidiaries may make other Investments (excluding the Bloom Acquisition) at any time; provided that (i) no Default shall have occurred and be continuing at the time such Investment occurs or after giving effect thereto, prepayments (ii) the Company shall be in Pro Forma Compliance after giving effect to such Investment and extensions of trade credit (iii) the Consolidated Net Leverage Ratio, calculated on a Pro Forma Basis after giving effect to such Investment, shall be at least 0.25 to 1.00 less than the otherwise applicable maximum Consolidated Net Leverage Ratio permitted by Section 8.06(a);
(k) the Company and its Restricted Subsidiaries may make loans and advances to officers, directors or employees for business-related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of businessbusiness or consistent with past practice;
(xivl) to the extent constituting Investments, (i) Restricted Junior Payments permitted under Section 8.05, (ii) Equity Related Compensation Payments and (iii) Contingent Obligations permitted under Section 8.04;
(m) the Company and its Restricted Subsidiaries may make Investments to the extent such Investments described are in Schedule 7.3B annexed hereto; provided that an amount not exceeding the aggregate fair market value cash proceeds of issuances of Capital Stock of the Company made within one year prior to the date of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000Investment; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2n) the consideration for which is the cancellation or Company and its Restricted Subsidiaries may make other settlement of Investments at any corresponding intercompany Indebtedness time in an aggregate amount, when aggregated with all Contingent Obligations incurred in connection with Investments permitted pursuant to the foregoing clause (1Section 8.04(f), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event to exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) 15,000,000 at any timetime outstanding.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8Expenditures;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, date and (d) for any such acquisitions (I) Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) after giving effect to such acquisition, (1) Company and its Subsidiaries shall be in Pro Forma Compliance and (2) the Consolidated Net Leverage Ratio does not exceed 2.75 to 1.00 on a Pro Forma Basis; provided that with respect to any Material Event or to the extent the Consolidated Net Leverage Ratio as of the end of the most recent Fiscal Quarter for which a Compliance Certificate has been delivered was greater than 2.00 to 1.00, Company shall have delivered to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which compliance with clauses (1) the Revolving Loan Commitment Amount exceeds and (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000above;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) investments in the aggregate outstanding at any time form of Hedge Agreements entered into in the ordinary course of business and not for all such Investmentsspeculative purposes;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xix) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xix) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiixi) any transaction permitted by subsections subsection 7.5 or 7.7;
(xiiixii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xvxiii) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment;
(xiv) Subsidiaries that are not Subsidiary Guarantors may make and own Investments in other Subsidiaries that are not Subsidiary Guarantors;
(xv) Investments existing at the time any Person is acquired in connection with a Permitted Acquisition and not created in contemplation of such Permitted Acquisition;
(xvi) loans or advances made by any Loan Party or any Subsidiary of a Loan Party to such Loan Party’s or such Subsidiary’s employees on an arms-length basis in the ordinary course of business consistent with past practices, in each case for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $50,000 to any employee and up to a maximum of $250,000 in the aggregate at any one time outstanding; and
(xvii) any Investment by Company or any Subsidiary not otherwise permitted by clauses (i) through (xvi) above; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such Investment is made or immediately after giving effect thereto, (b) after giving effect to such Investment, (1) Company and its Subsidiaries shall be in Pro Forma Compliance and (2) the Consolidated Net Leverage Ratio does not exceed 2.75 to 1.00 on a Pro Forma Basis; provided that with respect to any event exceed $50,000,000 Material Event or to the extent the Consolidated Net Leverage Ratio is greater than 2.00 to 1.00 as of the end of the most recent Fiscal Quarter for which a Compliance Certificate has been delivered, Company shall have delivered to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating compliance with clauses (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)1) at any timeand (2) above.
Appears in 1 contract
Investments; Acquisitions. Company and each other Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its the other Domestic Subsidiaries of Company may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysinvestments in Short-Term Investments;
(ii) So long as no Event of Default or Potential Event of Default has occurred and is continuing, the Foreign Subsidiaries may make investments in and own Short-Term Investments;
(iii) (a) Company and its Subsidiaries each wholly-owned Domestic Subsidiary may continue to make and own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such additional equity Investments in the form of Indebtedness into their respective wholly-owned Domestic Subsidiaries, and (b) each wholly-owned Foreign Subsidiary may make and own additional equity Investments in the form of Capital Stock), and Company its wholly-owned Subsidiaries;
(iv) Each Borrower and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iii);
(ivv) Company Each Borrower and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(vvi) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vivii) Company and its Subsidiaries may acquire any business, division, line So long as no Event of Default or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have has occurred and be continuing at is continuing, Subsidiaries of Company may consummate Permitted Acquisitions; provided that each of the time such acquisition occurs or immediately after giving effect thereto, following conditions are satisfied:
(a) the Acquired Business is engaged in a line of business that the Borrowers and their Subsidiaries are permitted to engage in under subsection 7.11;
(b) if the Acquired Business is located in the United States of America or is a Person that is incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia (any such Acquired Business a “Domestic Acquired Business”), the Acquired Business becomes a Subsidiary Guarantor (if required pursuant to subsection 6.8) or is acquired by a Borrower or a Subsidiary Guarantor in such Permitted Acquisition;
(c) within 30 days of the consummation of such Permitted Acquisition, Company and each other Borrower shall, and shall cause its Subsidiaries to, comply with the requirements of subsections subsection 6.8 and 6.9 (within to the time period extent required thereunder or within such other time period as Administrative Agent may permit in its sole discretionthereby) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, Permitted Acquisition;
(d) for prior to the consummation of any such acquisitions Permitted Acquisition, Company shall have provided (I) financial statements for any Person (or line of business) acquired deliver to Administrative Agent an Officer’s Certificate, in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably form and substance satisfactory to Administrative Agent Agent, (1) certifying that no Potential Event of Default or Event of Default shall then exist or shall occur as a result of such other financial statements, in each case, available to Company Permitted Acquisition and (II2) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisitionPermitted Acquisition and to all Indebtedness to be incurred or assumed or repaid in connection with or as consideration for such Permitted Acquisition, the Borrowers will be in compliance with the financial covenants set forth in subsection 7.6, calculated on a Pro Forma Basis, as of the last day of the four Fiscal Quarter period most recently ended prior to the date of the proposed Permitted Acquisition for which the relevant financial information is available;
(e) to the extent reasonably practicable, prior to the consummation of any Permitted Acquisition in which the aggregate consideration paid by Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000100,000,000, Borrowers’ Agent shall deliver to Administrative Agent, a copy of financial statements of the Person or business so acquired (it being understood that Company shall not be required to make any representation with respect to whether such financial statements have been prepared in accordance with GAAP) for the immediately preceding four consecutive Fiscal Quarter period corresponding to the calculation period for the financial covenants in clause (d); and
(f) prior to the consummation of any Permitted Acquisition in which the aggregate consideration paid by Company and its Subsidiaries is greater than $100,000,000, Borrowers’ Agent shall deliver to Administrative Agent audited financial statements of the Person or business to be so acquired for the fiscal year ended of such Person within the period set forth in clause (d).
(viii) Company and any other wholly-owned Domestic Subsidiary of Company may make additional Investments in their respective wholly-owned Foreign Subsidiaries; provided, that the aggregate amount of all such Investments made by Company or any Domestic Subsidiary shall not at any time exceed $50,000,000 plus an amount equal to 10% of Consolidated Net Income of the Company and its Subsidiaries from the Closing Date to the date of determination;
(viiix) so Company and the other Subsidiaries of Company may receive and hold Investments received in the ordinary course of business in settlement of Indebtedness of third parties created in the ordinary course of business;
(x) Company and the other Subsidiaries of Company may make investments consisting of non-cash consideration received in connection with sales of assets permitted pursuant to subsection 7.7(vii) in an aggregate outstanding amount not to exceed $50,000,000 at any time;
(xi) Company and the other Subsidiaries of Company may make investments consisting of non-cash consideration received in connection with sales of assets pursuant to subsection 7.7(v) to the extent permitted by such subsection;
(xii) Company and the other Subsidiaries of Company may make investments consisting of deposit accounts maintained by Company and the other Subsidiaries of Company; and
(xiii) So long as no Default or Potential Event of Default has occurred and is continuing, Company and its the other Domestic Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one 40,000,000 plus any cash interest or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration dividends received in connection with any Asset Sale permitted by subsection 7.7;
(xi) such Investment. Notwithstanding anything contained herein to the contrary, Company and its Subsidiaries may each other Borrower shall not permit any Foreign Subsidiary to acquire and hold Investments in Securities in connection with the full (by purchase or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiiotherwise) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of after the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of hereof the Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments Person that upon such acquisition becomes a Domestic Subsidiary, except as a result of a Permitted Acquisition otherwise permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeAgreement.
Appears in 1 contract
Investments; Acquisitions. Company Borrowers shall not, and shall not permit any of its their Restricted Subsidiaries to, directly or indirectly, make or own any Investment in any 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 capital stock or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company Borrowers and its their Restricted Subsidiaries may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company Borrowers and its their Material Subsidiaries may continue to make and own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such additional equity Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its their respective wholly-owned Material Subsidiaries; Restricted Subsidiaries other than Material Subsidiaries may make and own additional Investments in the Company or Borrowers and other Restricted Subsidiaries; Borrowers and Material Subsidiaries may make and own Investments in Restricted Subsidiaries other than Material Subsidiaries in an amount not to exceed $10,000,000 in any Subsidiary GuarantorFiscal Year;
(iii) Company Borrowers and its their Restricted Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company Borrowers and its their Restricted Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company Borrowers and its their Restricted Subsidiaries may continue to own the Investments owned by them as of the Closing Date, including Investments in Joint Ventures, described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company Borrowers and its their Restricted Subsidiaries may acquire any business, division, line or assets (including Capital Stock capital stock or other ownership interests and including Capital Stock of Subsidiaries formed Investments in connection with any such acquisitionJoint Ventures and Unrestricted Subsidiaries) for an aggregate purchase price (determined at the time of purchase thereof) having a fair market value not in excess of $75,000,000 5,000,000 in any individual case (provided that such amount may be increased by one Fiscal Year and $15,000,000 in the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), aggregate and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time occur as a result of such acquisition occurs or immediately after giving effect thereto, (b) Company and Borrowers shall, and shall cause its their Restricted Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional and own Investments in the form of non-cash Patronage Dividends in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Person including Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investmentsform of CoBank Equity Interests;
(viii) Company Borrowers and its their Material Subsidiaries may make and own other Investments in the Coffeyville Bonds, provided that at all times Agent shall have a perfected First Priority security interest in such Coffeyville Bonds; and
(ix) Borrowers and their Restricted Subsidiaries may make and own additional Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time15,000,000.
Appears in 1 contract
Investments; Acquisitions. Holdings, Company and each other Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its the other Domestic Subsidiaries of Holdings may make and own Investments in Cash Equivalents;
(ii) So long as no Event of Default or Potential Event of Default has occurred and is continuing, Foreign Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, Equivalents in an aggregate principal amount not to exceed $25,000,000 at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash ; 120
(iii) Holdings and Cash Equivalents permitted to be each wholly-owned by Company Domestic Subsidiary may make and its own additional equity Investments in their respective wholly-owned Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysSubsidiaries;
(iiiv) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company Each Borrower and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iii);
(ivv) Company Each Borrower and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(vvi) Company Holdings and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vivii) Company and its Subsidiaries may acquire any business, division, line So long as no Event of Default or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have has occurred and be continuing at is continuing, Subsidiaries of Holdings may consummate Permitted Acquisitions; provided that each of the time such acquisition occurs or immediately after giving effect thereto, following conditions are satisfied:
(a) the Acquired Business is engaged in a line of business that the Borrowers and their Subsidiaries are permitted to engage in under subsection 7.11;
(b) if the Acquired Business is located in the United States of America or is a Person that is incorporated or organized under the laws of the United States of America, any state thereof or in the District of Columbia (any such Acquired Business a "DOMESTIC ACQUIRED BUSINESS"), the Acquired Business becomes a Subsidiary Guarantor or is acquired by a Borrower or a Subsidiary Guarantor in such Permitted Acquisition;
(c) the aggregate amount of consideration paid by Subsidiaries of Holdings for all Permitted Acquisitions (i) in any Fiscal Year shall not exceed $100,000,000 and (ii) during the term of this Agreement shall not exceed $400,000,000;
(d) the aggregate amount of consideration paid by Subsidiaries of Holdings for all Permitted Acquisitions of Foreign Acquired Businesses (i) in any Fiscal Year shall not exceed $65,000,000 and (ii) during the term of this Agreement shall not exceed $175,000,000;
(e) concurrently with the consummation of such Permitted Acquisition, Holdings, Company and each other Borrower shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, Permitted Acquisition;
(cf) all representations and warranties contained herein and in the other Loan Documents Company shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated deliver to relate to a specific earlier dateAdministrative Agent an Officer's Certificate, in which case such representations form and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably substance satisfactory to Administrative Agent Agent, (1) certifying that no Potential Event of Default or Event of Default shall then exist or shall occur as a result of such other financial statements, in each case, available to Company Permitted Acquisition and (II2) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisitionPermitted Acquisition and to all Indebtedness to be 121 incurred or assumed or repaid in connection with or as consideration for such Permitted Acquisition, Company the Borrowers will be in compliance with the financial covenants set forth in subsection 7.6, calculated on a Pro Forma Basis, as of the last day of the four Fiscal Quarter period most recently ended prior to the date of the proposed Permitted Acquisition for which the relevant financial information is available;
(g) prior to the consummation of any Permitted Acquisition in which the aggregate consideration paid by Holdings and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,00050,000,000, Borrowers' Agent shall deliver to Administrative Agent, a copy of financial statements of the Person or business so acquired for the immediately preceding four consecutive Fiscal Quarter period corresponding to the calculation period for the financial covenants in clause (f); and
(h) prior to the consummation of any Permitted Acquisition in which the aggregate consideration paid by Holdings and its Subsidiaries is greater than $50,000,000, Borrowers' Agent shall deliver to Administrative Agent audited financial statements of the Person or business to be so acquired for the fiscal year ended of such Person within the period set forth in clause (f).
(viii) Company and any other wholly-owned Subsidiary of Holdings may make additional Investments in their respective wholly-owned Foreign Subsidiaries; provided, that the aggregate amount of all such Investments made by Holdings or any Domestic Subsidiary together with the aggregate principal amount of all Indebtedness owed by all of the Foreign Subsidiaries to Domestic Subsidiaries pursuant to subsection 7.1(iii) and Contingent Obligations incurred pursuant to subsection 7.4(ix), shall not exceed $75,000,000;
(viiix) so Company and the other Subsidiaries of Holdings may receive and hold Investments received in the ordinary course of business in settlement of Indebtedness of third parties created in the ordinary course of business;
(x) Company and the other Subsidiaries of Holdings may make Investments consisting of non-cash consideration received in connection with sales of assets permitted pursuant to subsection 7.7(vii) in an aggregate outstanding amount not to exceed $50,000,000 at any time;
(xi) Company and the other Subsidiaries of Holdings may make Investments consisting of non-cash consideration received in connection with sales of assets pursuant to subsection 7.7(v) to the extent permitted by such subsection;
(xii) Company and the other Subsidiaries of Holdings may make Investments consisting of deposit accounts maintained by Company and the other Subsidiaries of Holdings; and
(xiii) So long as no Default or Potential Event of Default has occurred and is continuing, Company and its the other Domestic Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries Holdings may make and 122 own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one 25,000,000 plus any cash interest or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration dividends received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeInvestment.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any Person, including any Joint Venture, or acquire, by purchase or otherwise, all or substantially all the business, property or fixed assets of, or 106 Capital Stock or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments wholly-owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Domestic Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A SCHEDULE 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company and its Domestic Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) having a fair market value not in excess of $75,000,000 15,000,000 in any individual case (provided that such amount may be increased by one Fiscal Year and $40,000,000 in the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), aggregate and continue to own such assets after the acquisition thereof; provided PROVIDED that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Domestic Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (cb) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments pro forma compliance with all financial covenants after giving effect to such acquisition and any related transactions, is not less than $25,000,000(c) no Event of Default shall have occurred and be continuing prior to such acquisition or result from such acquisition;
(vii) so long as any Foreign Subsidiary of Company may acquire assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) having a fair market value not in excess of $7,500,000 in any one Fiscal Year and $20,000,000 in the aggregate and continue to own such assets after the acquisition thereof; PROVIDED that (a) Company shall cause such Foreign Subsidiary to comply with the requirements of subsection 6.8 with respect to each such acquisition that results in a Person becoming a Subsidiary, (b) Company shall be in pro forma compliance with all financial covenants after giving effect to such acquisition and (c) no Event of Default has have occurred and is continuing, be continuing prior to such acquisition or result from such acquisition;
(viii) Company and its wholly-owned Domestic Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantortheir respective Foreign Subsidiaries; provided PROVIDED that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 5,000,000 (net plus the amount of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company all loans or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capitaladvances permitted under subsection 7.1(iv)) in the aggregate outstanding at any time for all such Investments;Investments since the Closing Date, including all Contingent Obligations of Company pursuant to subsections 7.4(viii) and (ix); 107
(viiiix) Company and its Domestic Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,0005,000,000;
(ixx) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with (i) such officers’ ' or employees’ ' acquisition of shares of Company’s Capital Stock, Holdings' common stock (or the common stock of a parent entity of Holdings that directly owns 50% or more of the Voting Stock of Holdings) so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligationsobligations or (ii) in connection with the payment of income taxes on employee-owned stock of Holdings, Company or its Subsidiaries (in an aggregate amount during any Fiscal Year not in excess of $1,000,000);
(xxi) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xixii) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries Subsidiaries, including Securities received in connection with the bankruptcy, insolvency or reorganization of the Person obligated on such Indebtedness or claim, or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) depositsCompany and its Subsidiaries may make loans (financing equipment sold by Company and its Subsidiaries) or equipment leases to customers doing business with Company and its Subsidiaries in an aggregate principal amount not to exceed (i) $20,000,000 at any time on or prior to June 30, prepayments 2006, (ii) $30,000,000 at any time after June 30, 2006 but on or prior to June 30, 2007 and extensions (iii) $40,000,000 at any time after June 30, 2007 (with the principal amount of trade credit such leases to be deemed to be equal to the discounted present value, at a market rate of interest, of the remaining rental payments plus any residual value of the leased equipment as shown on Company's financial statements); provided that, Company or such Subsidiary has filed appropriate UCC financing statements to protect its interest in all such financed equipment to the ordinary course extent such equipment has, at the time of business;such transaction, a fair market value in excess of $10,000; and
(xiv) Company and its Subsidiaries may make the Investments described loans to customers doing business with Company and its Subsidiaries in Schedule 7.3B annexed hereto; provided that the aggregate fair market value settlement of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by accounts receivable owing to Company or any Subsidiary Guarantor of its Subsidiaries from such customer in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made an aggregate principal amount not to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) 7,500,000 at any one time.
Appears in 1 contract
Samples: Credit Agreement (FTD Inc)
Investments; Acquisitions. Company shall notNo Credit Party will, and shall not nor will it permit any of its 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:
(ia) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(iib) Credit Parties may continue to own the Investments owned by them as of the Restatement Effective Date in any Credit Parties and Credit Parties may make and own additional equity Investments in other Credit Parties;
(c) Credit Parties may make intercompany loans to the extent permitted under Section 6.1(e);
(d) [Reserved];
(e) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date and described in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary GuarantorSchedule 6.3 annexed hereto;
(iiif) Company Holdings and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers Officers or other employees of Company Company, Holdings or its Subsidiaries in connection with such officersOfficers’ or employees’ acquisition of shares of Company’s Capital Stock, so long as no cash Cash is actually advanced by Company Company, Holdings or any of its Subsidiaries to such officers Officers or employees in connection with the acquisition of any such obligations;
(xg) Company and its Subsidiaries may receive make and hold promissory notes own Investments constituting non-Cash proceeds of sales, transfers and other non-cash consideration received in connection with any Asset Sale dispositions of property to the extent permitted by subsection 7.7Section 6.7;
(xih) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiii) Company and its Subsidiaries may make any transaction Restricted Junior Payment expressly permitted by subsections 7.5 Section 6.5 (it being understood that any such Restricted Junior Payment may be made in the form of an intercompany loan or 7.7advance);
(xiiij) depositsCompany and its Subsidiaries may acquire Investments (including debt obligations) received in the ordinary course of business by Company or any of its Subsidiaries in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, prepayments and extensions other disputes with, customers and suppliers arising out of trade credit in the ordinary course of business;
(xivk) Company and its Subsidiaries may acquire Investments of any Person in existence at the time such Person becomes a 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 Subsidiary;
(l) Company and its Subsidiaries may make or continue to hold Investments resulting from deposits referred to in paragraph (c) of the Investments described definition of “Permitted Encumbrances” and clause (viii) of Section 6.2(a);
(m) Company may perform its obligations under and in Schedule 7.3B annexed hereto; accordance with the Conveyance of Undivided Mineral Interest, the Sand Purchase Documents and Natural Gas Hedging Agreements, provided that 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 its Subsidiaries are exposed in the conduct of their business and the management of their liabilities;
(n) Credit Parties may make and hold loans and advances to their employees in an aggregate fair market value amount not to exceed $1,150,000 at any time outstanding, provided that, such loan or advance is not made in material violation of any law;
(o) Company and its 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 Investments joint venture (as determined as such Person or such division, line of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation business or other settlement business unit of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant such Person or such joint venture shall be referred to herein as the foregoing clause (1“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 Credit 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, (B) the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not aggregate consideration (a) exceed zero after the tenth day following the making of such cash Investment including without limitation earn out obligations, deferred compensation and (b) in any event exceed $50,000,000 (taken together with the amount of Indebtedness and other liabilities assumed by Credit Parties, but excluding equity consideration, consideration paid from the proceeds of equity of Holdings or capital contributions made to Holdings and non-competition arrangements) paid by Credit Parties in connection with all other such acquisitions shall not exceed in the aggregate (i) $28,750,000 of cash on hand and (ii) all or any portion of the Subordinated Indebtedness permitted pursuant to Section 6.1(m) provided that no more than $11,500,000 of such aggregate consideration may be in the form of seller financing permitted under Section 6.1 during the term of this Agreement, (C) 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), (D) the Target is located in the United States of America, Canada or Mexico, and (E) in the case of the acquisition of a Person, such Person shall become a wholly-owned Subsidiary of a Credit Party;
(p) Company and its Domestic Subsidiaries may make and own Investments then outstanding under this subsection 7.3(xv)) in Foreign Subsidiaries in an aggregate amount not to exceed $5,750,000, at any timetime outstanding;
(q) in addition to Investments otherwise expressly permitted by this Section, Company and its Subsidiaries may make Investments not exceeding in the aggregate $5,750,000; and
(r) Foreign Subsidiaries may make and own Investments in other Foreign Subsidiaries.
Appears in 1 contract
Samples: Note Purchase Agreement (U.S. Silica Holdings, Inc.)
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided thatin Cash, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted and Investment Grade Securities and may enter into repurchase agreements and reverse repurchase agreements with any Lender or any primary dealer of United States government securities relating to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period Investment Grade Securities maturing within two years from the date of five (5) consecutive daysacquisition thereof;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may (a) make Capital Contributions and own any resulting additional equity Investments in any Regulated Subsidiary and (b) make and own additional equity Investments in the Company or any Subsidiary GuarantorGuarantor that is not a Regulated Subsidiary;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock Stock, and including Capital Stock of Subsidiaries formed in connection with any such acquisition) in one or more transactions for an aggregate purchase price consideration (determined at including the time principal amount of purchase thereofany Indebtedness assumed as permitted by subsection 7.1(viii)) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof100,000,000; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments assets for an aggregate consideration in Securities in connection with the full or partial satisfaction, settlement or enforcement excess of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
$100,000,000 (xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.determining
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit Make any of its Subsidiaries to, directly Investments or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person Acquisition except:
(ia) Company and its Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at held by any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments Loan Party in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary GuarantorCash Equivalents;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make Existing Investments in Subsidiaries and incur intercompany loans to other Investments in existence on the extent permitted under subsection 7.1(v)Effective Date and described in Schedule 6.05;
(ivc) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8Investments in any Loan Party existing as of the Effective Date;
(vd) Company and its Subsidiaries may continue to own Investments consisting of extensions of credit in the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension nature of accounts receivable or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds notes receivable arising from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled customers or suppliers to the extent reasonably necessary in order to prevent or limit loss or received in connection with the bankruptcy or reorganization of its customers or suppliers;
(xive) Company Investments in newly-formed Subsidiaries;
(f) Acquisitions and Rig Acquisitions financed with Net Cash Proceeds received upon either (i) the issuance and sale by the Borrower of its Subsidiaries may make Equity Interests for the Investments described in Schedule 7.3B annexed heretosole purpose of making such Acquisition or (ii) an Asset Disposition to the extent permitted by Section 2.07(c)(iii); provided that if any Person contemporaneously with the aggregate fair market value making of such Investment, becomes a Subsidiary, such Person shall become a Guarantor, if it is required to become a Guarantor, pursuant to Section 5.13;
(g) Investments under Swap Contracts permitted under Section 6.02(f);
(as determined as h) Investments consisting of loans or advances to officers, directors and employees of the date each such Investment is made) shall Borrower and Subsidiaries in an aggregate amount not to exceed $42,000,000500,000 at any time outstanding, for ordinary business purposes;
(i) (i) Guarantees permitted by Section 6.02 and (ii) Guarantees by the Borrower or any Subsidiary for the performance or payment obligations of the Borrower or any Wholly Owned Subsidiary, which obligations were incurred in the ordinary course of business and do not constitute Debt;
(j) cash Investments consisting of Capital Expenditures permitted pursuant to Section 6.14;
(k) Investments consisting of intercompany Debt permitted to be incurred under, and complying with the requirements of, Section 6.02;
(l) Investments, including Acquisitions or Rig Acquisitions, made or acquired in exchange for the issuance of Equity Interests of the Borrower;
(m) Investments in prepaid expenses and deposits provided to others in the ordinary course of business;
(n) Investments not otherwise permitted by any other clause of this Section 6.05 which do not exceed, in the aggregate, $1,000,000 in the aggregate;
(o) Investments, if any, made by the Borrower or any Subsidiary and described in the Omnibus Restructuring Agreement so long as such Investments are effected in order to complete the Transactions; and
(xvp) Investments made by Company or any the Borrower to a newly created, wholly owned Subsidiary Guarantor in any of their respective Subsidiaries so long as (1i) consisting of Capital Stock and/or intercompany notes such Investments are made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with completing the Transactions and (ii) such new Subsidiary is a Guarantor hereunder on the date of such Investment and the assets involved in such Investments permitted pursuant continue to be Collateral to the foregoing clause (1), in each case so long as the net cash Investment by Company or extent such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of assets constituted Collateral prior to such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeInvestment.
Appears in 1 contract
Samples: Revolving Credit Agreement (Seahawk Drilling, Inc.)
Investments; Acquisitions. Company Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person except:
(i) Company Borrower and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company Borrower and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (Borrower and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company Borrower and its Subsidiaries may make and own additional equity Investments in the Company or any their respective Subsidiaries that are Subsidiary GuarantorGuarantors;
(iii) Company Borrower and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company Borrower and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8Expenditures;
(v) Company Borrower and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company Borrower and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company assets or Subsidiaries so acquired are in lines of business permitted under subsection 7.9, (c) if the aggregate consideration in acquisitions made pursuant to this subsection 7.3(vi), together with the aggregate fair market value of Asset Sales made pursuant to subsection 7.6(iv), exceeds $50,000,000 in any Fiscal Quarter, Borrower and its Subsidiaries are in Pro Forma Compliance with the financial covenants set forth in subsection 7.5, and (d) Borrower shall, and shall cause its Subsidiaries to, comply with the requirements of subsections subsection 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Domestic Subsidiary; provided, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in that if any such acquisition for the last Fiscal Year is of such Person a Foreign Subsidiary or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified made by a Financial Officer Foreign Subsidiary, then the aggregate amount of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries all Limited Foreign Investments shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than exceed $25,000,000500,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company Borrower may acquire and hold obligations of one or more officers or other employees of Company Borrower or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of CompanyBorrower’s Capital Stock, so long as no cash is actually advanced by Company Borrower or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(xviii) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company Borrower and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company Borrower or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiiix) Borrower and its Subsidiaries may make additional Investments in their respective wholly-owned Foreign Subsidiaries and Joint Ventures, whether constituting equity or loans or advances; provided that the aggregate amount of all Limited Foreign Investments shall not exceed $500,000,000;
(x) Borrower and its Subsidiaries may undertake any transaction permitted under subsection 7.4 or 7.6;
(xi) Borrower and its Subsidiaries may make and own Investments consisting of non-Cash consideration in the form of Capital Stock, notes or similar obligations in connection with any sale of assets permitted pursuant to subsection 7.6;
(xii) Borrower and its Subsidiaries may make Investments which are funded by subsections 7.5 or 7.7the issuance of Capital Stock of Borrower in connection with a Permitted Acquisition;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company Borrower and its Subsidiaries may make additional Investments in an amount aggregating not in excess of $25,000,000 since the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000Closing Date; and
(xvxiv) Investments by Company in connection with one or more restructurings or reorganizations of assets acquired in the acquisition of Levitronix LLC (predecessor to Thoratec LLC) (“Levitronix”), Borrower or any Subsidiary Guarantor in any of their respective its Subsidiaries (1) may sell or otherwise transfer to one or more Foreign Subsidiaries of Borrower assets related to Levitronix consisting of Capital Stock of Foreign Subsidiaries, Intellectual Property and/or intercompany Investments in any other Subsidiaries in exchange for value reasonably equivalent of the assets so sold or transferred, which value may consist of (a) the acceptance by Borrower or any of its Subsidiaries of promissory notes made of, or other agreements to achieve cash repatriation strategies make future payments by, such Foreign Subsidiaries; provided that if the obligor under any such obligations is a Loan Party then such obligations shall have been subordinated to the Obligations on terms reasonably satisfactory to Administrative Agent, or (2b) the consideration for which is assumption by Foreign Subsidiaries of obligations of Borrower or any of its Subsidiaries other than the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1)Obligations, in each case so long as the net cash Investment by Company aggregate value of the assets so sold or transferred to such Subsidiary Guarantor in connection therewith Foreign Subsidiaries does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time160,000,000.
Appears in 1 contract
Samples: Credit Agreement (Thoratec Corp)
Investments; Acquisitions. Company shall will not, and shall not nor will it permit any of its Subsidiaries to, directly or indirectly, indirectly make or own any Investment in any 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 Person, or any division or line of business of any Person Person, except:
(a) Cash and Cash Equivalents;
(b) Investments in Company and Subsidiary Guarantors;
(c) Loan Parties may make intercompany loans to other Loan Parties to the extent permitted under Section 7.1(d);
(d) Hedge Agreements and Currency Agreements permitted under Section 7.1(h) to the extent such agreements constitute Investments;
(e) loans, advances or Indebtedness to the extent permitted by Section 7.4;
(f) Investments effected in accordance with Section 7.7 and any non-cash consideration received in connection with any asset sale to the extent permitted under Section 7.7;
(g) Consolidated Capital Expenditures permitted by Section 7.8;
(h) the Investments owned by Company and its Subsidiaries on the Closing Date and described in Schedule 7.3;
(i) Company and its Subsidiaries may make and own Investments consisting acquire (by way of Cash and Cash Equivalents; provided thatacquisition, at any time Revolving Loans merger, consolidation or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5otherwise) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Business Lines, divisions, and Capital Stock and (including Capital Stock of Subsidiaries formed in connection with any such acquisition)) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 50,000,000 in any individual case the aggregate during the term of this Agreement (provided that such amount may be increased by less, in each case, Cash and Cash Equivalents of the amount of any Net Securities Proceeds from the issuance of target being acquired and any Capital Stock, Net Asset Sale Proceeds Stock or Net Insurance/Condemnation Proceeds proceeds of Capital Stock issued or used to fund such as purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)price), and continue to own such assets after the acquisition thereof; provided that (aA) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs is consummated or immediately after giving effect thereto, (bB) where applicable, Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder as soon as practicable or within such other longer time period as Administrative Agent may permit in its sole discretion) with the requirements of Sections 6.8 and 6.9 with respect to each such acquisition that results in a Person becoming a Material SubsidiarySubsidiary of Company, (cC) all representations and warranties contained herein and the acquired assets or Business Line is in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier datebusiness permitted by Section 7.11, (dD) for any such acquisitions Company shall have provided (I1) to the extent available, financial statements for any Person (or line of business) Business Line acquired in any such acquisition for the last Fiscal Year of such Person or line of businessBusiness Line, audited or reviewed by independent certified public accountants of nationally recognized standing reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II2) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial the chief financial officer or other financial Officer of Company and demonstrating that (x) after giving effect to such acquisitionacquisition (including any incurrence of Indebtedness in connection therewith), Company and its Subsidiaries shall be in Pro Forma Compliance, Compliance with the Consolidated Leverage Ratio then in effect pursuant to Section 7.6(b) and (eE) the amount by which (1x) the Revolving Loan Commitment Amount exceeds (2y) the Total Utilization of Revolving Loan Commitments Commitments, immediately after giving pro forma effect to such acquisition and any related transactions, is not less than $25,000,00010,000,000;
(viij) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company Holdings may acquire and hold obligations of one or more officers Officers or other employees of Company Holdings or any of its Subsidiaries in connection with such officersOfficers’ or employees’ acquisition of shares of Company’s Holdings’ Capital Stock, so long as no cash Cash is actually advanced by Company Holdings or any of its Subsidiaries to such officers Officers or employees in connection with the acquisition of any such obligations;
(xk) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received make payroll advances in connection with any Asset Sale permitted by subsection 7.7the ordinary course of business;
(xil) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided that nothing in this clause shall prevent Company or any of its Subsidiaries from offering such concessionary trade terms, or from receiving such Investments, in connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the ordinary course of business, as security for any such Indebtedness or claimmanagement deems reasonable under the circumstances;
(xiim) Company or any transaction permitted by subsections 7.5 or 7.7of its Subsidiaries may make travel and entertainment advances and relocation and other loans to Officers and employees of such Person in the ordinary course of business; provided that the aggregate principal amount of all such loans and advances outstanding at any one time shall not exceed $500,000;
(xiiin) depositsother Investments by Company and its Subsidiaries not exceeding in the aggregate outstanding at any one time the greater of $5,000,000 and 5.0% of Total Assets at such time (net of any cash returns of capital, prepayments cash dividends and extensions cash distributions received by Company or any its Subsidiaries in respect thereof);
(o) Investments incurred in the ordinary course of trade credit business to purchase D&O insurance or to cover indemnification obligations due and owing to such director, Officer or manager as long as such indemnification is related to the Retail Business;
(p) Investments funded solely with equity (other than Disqualified Stock) in businesses permitted under Section 7.11;
(q) loans by Company or any of its Subsidiaries to Holdings or its parent company to the extent a distribution could otherwise be made under Section 7.5(b) or (c);
(r) pledges and deposits permitted under this Agreement and prepaid expenses made in the ordinary course of business;
(xivs) Company and capitalization or forgiveness of any Indebtedness permitted hereunder to be owed to Holdings or any of its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value by any of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000its Subsidiaries; and
(xvt) Investments until the Wholesale Spinoff, any Wholesale Shortfall; provided that in the event as of any date the Payments Amount exceeds the Payments Basket, then Sponsor (and/or its Affiliates) shall, within 30 days of delivery by Company or any Subsidiary Guarantor in any to Administrative Agent of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation financial statements or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted reports required pursuant to Section 6.1 first disclosing such excess, make a cash equity contribution to Company in an amount necessary so that the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith Payments Amount does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timePayments Basket.
Appears in 1 contract
Samples: Credit Agreement (Grande Communications Holdings, Inc.)
Investments; Acquisitions. Holdings and Company shall not, and shall not permit any of its their Subsidiaries to, directly or indirectly, make or own any Investment in any 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 of, any Person, or any division or line of business of any Person except:
(i) Company Holdings and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) the Guarantors may make and own Investments in Company and in other Guarantors that are Subsidiaries of Company, and Subsidiaries of Company that are not Guarantors may make and own Investments in other Subsidiaries of Company;
(iii) Holdings and its Subsidiaries may make intercompany loans, guarantees and advances to the extent permitted under subsection 7.1;
(iv) Holdings and its Subsidiaries may consummate the Merger and make related Investments in accordance with the terms and conditions of the Merger Agreement;
(v) Company and its Subsidiaries may make Consolidated Capital Expenditures not prohibited by the First Lien Credit Agreement;
(vi) Company and its Subsidiaries may continue to own the Investments owned by them as of and described in Schedule 7.3 annexed hereto, including any modification, replacement, renewal or extension thereof which does not increase the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantoramount thereof;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(ivvii) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereofPermitted Acquisitions; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall be in Pro Forma Compliance (as defined in the First Lien Credit Agreement as in effect on the Closing Date without giving effect to any waiver by Lenders under the First Lien Credit Agreement of Covenants in the First Lien Credit Agreement on which Pro Forma Compliance is based) after giving effect thereto, (c) Company and Holdings shall, and shall cause its their Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations Subsidiary and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any the aggregate fair market value of all direct and indirect Investments in Persons that do not become Guarantors resulting from all such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments$3,000,000;
(viii) Company and its Subsidiaries the Subsidiary Guarantors may make Investments consistent with past practice for the purposes of reimbursing payroll, rent, insurance and own other Investments ordinary course operating expenses of current and future Foreign Subsidiaries that do not conduct, transact or otherwise engage in an aggregate amount not any business or operations other than the provision of services to exceed at any time $25,000,000or on behalf of Company and its Subsidiaries;
(ix) Holdings and Company may acquire and hold obligations of one or more officers or other employees of Company Holdings or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of Company’s its Capital Stock, so long as no cash is actually advanced by Company Holdings or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash noncash consideration received in connection with any Asset Sale permitted by subsection 7.77.6;
(xi) Company and its Subsidiaries (a) may acquire make and hold own other Investments through the issuance of Specified Equity and (b) may make and own other Investments in Securities in connection with an aggregate amount not to exceed at any time (x) $6,000,000 plus (y) the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claimSpecified Equity Amount;
(xii) any transaction permitted by subsections 7.5 Company and its Subsidiaries may make and own Investments in connection with the workout, bankruptcy or 7.7reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(xiii) depositsCompany and its Subsidiaries may make and own Investments consisting of lease, prepayments utility and extensions of trade credit other deposits or advances in the ordinary course of business;
(xiv) Company and its Subsidiaries may make and own Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business;
(xv) Holdings and its Subsidiaries may enter into Hedge Agreements as permitted under subsection 7.1(xi);
(xvi) Company and its Subsidiaries may make and own Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value ordinary course of such business consisting of endorsements for collection or deposit;
(xvii) Holdings and its Subsidiaries may make and own Investments (as determined as consisting of advances of payroll payments to employees in the date each such Investment is made) shall not exceed $42,000,000ordinary course of business; and
(xvxviii) Investments by Company and its Subsidiaries may make advances in the form of a cash deposit or any Subsidiary Guarantor in any prepayment of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made expenses to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1)vendors, in each case suppliers and trade creditors so long as such deposits are made and such expenses are incurred in the net cash Investment by ordinary course of business of Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeSubsidiary.
Appears in 1 contract
Samples: Second Lien Credit Agreement (IntraLinks Holdings, Inc.)
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person Person, except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(vpursuant to subsections 7.1(iii), (iv) and (v);
(iii) any Subsidiary (other than a Subsidiary Guarantor or a Dormant Subsidiary) may make and own Investments in any other Subsidiary (other than a Subsidiary Guarantor or a Dormant Subsidiary);
(iv) Company and its Subsidiaries Subsidiary Guarantors may make Consolidated Capital Expenditures permitted by subsection 7.8and own Investments in Company and Subsidiary Guarantors;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in on Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof7.3 of the Company Disclosure Letter; provided that any additional Investments not described on Schedule 7.3 may be made with respect thereto shall be permitted only to the extent such the Investments are described on Schedule 7.3A 7.3 are sold or made in accordance with the other provisions otherwise disposed of this subsection 7.3but not above $200,000,000;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and make capital expenditures in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line ordinary course of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiiviii) Company and its Subsidiaries may acquire assets (including Capital Stock and including Capital Stock of Subsidiaries of Company formed in connection with any such acquisition) of (a) any transaction Person in the same or similar line of business (or any related, ancillary or complementary business, including business services) as Company having a fair market value not in excess of $50,000,000 individually and $100,000,000 in the aggregate in any one Fiscal Year (1) through the issuance of Capital Stock of Company or any Subsidiary, (2) with Cash, (3) with the proceeds of Permitted Senior Indebtedness or Permitted Subordinated Indebtedness or (4) with any combination of the foregoing, in each case if after giving effect to such acquisition, no Event of Default or Potential Event of Default shall have occurred or be continuing; or (b) any Person in the same or similar line of business (or any related, ancillary or complementary business, including business services) as Company (1) through the issuance of Capital Stock of Company or any Subsidiary, (2) with Cash, (3) with the proceeds of Permitted Senior Indebtedness or Permitted Subordinated Indebtedness or (4) with any combination of the foregoing, in each case if after giving effect to such acquisition, (A) no Event of Default or Potential Event of Default shall have occurred or be continuing, (B) at least $100,000,000 is available in Revolving Loan Commitments, and (C) the Consolidated Leverage Ratio determined on a pro forma basis is equal to or less than 2.50:1.00 (each a “Permitted Acquisition”); provided, however, that the restrictions set forth in clauses (a) and (b) above shall not apply if, at the time Company or such Subsidiary makes such acquisition and after giving pro forma effect thereto, the Company Debt Rating shall be at least Ba1 from Xxxxx’x and at least BB+ from S&P;
(ix) any Person who becomes a Subsidiary of Company or who is merged or consolidated into a Subsidiary of Company after the date hereof pursuant to a Permitted Acquisition may continue to own Investments owned by such Person on the date of such Permitted Acquisition; provided that (a) such Investment was not incurred in connection with, or anticipation or contemplation of, such Permitted Acquisition and (b) neither Company nor any of its Subsidiaries (other than such Person or the Subsidiary of Company into which such Person is merged or consolidated) shall become liable with respect to such Investment;
(x) Company and its Subsidiaries may make and own Investments consisting of non-Cash consideration in the form of Capital Stock, notes or similar obligations in connection with any sale of assets permitted by subsections 7.5 or pursuant to subsection 7.7;
(xiiixi) depositsCompany and its Subsidiaries (other than Dormant Subsidiaries) may make and own other Investments; provided that the aggregate principal amount of all such Investments plus the aggregate amount of outstanding Indebtedness permitted pursuant to subsection 7.1(iv) does not exceed at any time $200,000,000 which amount shall be increased by $25,000,000 each Fiscal Year following the Fiscal Year ended December 26, prepayments 2008; provided, however, that the restriction as to the amount of such Investments shall not apply to any such Investment if, at the time Company or such Subsidiary makes such Investment and extensions of trade credit after giving pro forma effect thereto, the Company Debt Rating shall be at least Ba1 from Xxxxx’x and at least BB+ from S&P;
(xii) Company and its Subsidiaries may make and own Investments (including capital contributions in or loans to) in Joint Ventures in the ordinary course of business;
(xivxiii) Company and its Subsidiaries may make consummate the Investments described Merger in Schedule 7.3B annexed hereto; provided that accordance with the aggregate fair market value of such Investments (as determined as terms and conditions of the date each such Investment is made) shall not exceed $42,000,000Merger Agreement; and
(xvxiv) Company, the Excluded Subsidiaries and Subsidiary Guarantors may make and own Investments by Company or any Subsidiary Guarantor in any the form of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1subsection 7.1(xv), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.
Appears in 1 contract
Samples: Credit Agreement (Urs Corp /New/)
Investments; Acquisitions. Company Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company a. Borrower and its Subsidiaries may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company b. Borrower and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any 115 Subsidiaries of Company (Borrower and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company Borrower and its wholly-owned Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Subsidiaries;
(iii) Company c. Borrower and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v)Subsection VII.A.c;
(iv) Company d. Borrower and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8Subsection VII.H;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company e. Borrower and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate having a purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), aggregate and continue to own such assets after the acquisition thereof; provided that (ai) no Potential Event of Default or Event of Default shall have occurred and or be continuing at the time as a result of such acquisition occurs or immediately after giving effect thereto, and (bii) Company Borrower shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 Subsections VI.H and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) VI.I with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company f. Borrower and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company 50,000,000, of which up to $10,000,000 may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with such officers’ or employees’ acquisition be used by Borrower for repurchase of shares of Company’s its own Capital Stock, so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that no Potential Event of Default or Event of Default shall have occurred or be continuing at the aggregate fair market value of such Investments (as determined as of the date each time any such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v)7.1;
(iviii) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(viv) Company and its Subsidiaries may continue to own the Investments described in owned by them and set forth on Schedule 7.3A 7.3 annexed hereto hereto;
(v) Company and its Subsidiaries may make incremental additional Investments contemplated in connection therewith) and any extension or renewal thereoftheir respective Foreign Subsidiaries; provided that any additional Investments made with respect thereto shall be permitted only to (a) the extent amount of all such Investments are described constituting equity Investments (other than the conversion to equity of the intercompany Indebtedness set forth on Schedule 7.3A 7.1 annexed hereto) does not exceed $10,000,000 in the aggregate for all such Investments since the Restatement Date and (b) the amount of all such Investments constituting loans or made advances permitted under subsection 7.1(v) does not exceed $10,000,000 in accordance with the other provisions of this subsection 7.3aggregate principal amount at any time outstanding;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed make additional Investments in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereoftheir respective Domestic Subsidiaries; provided that (a) no Potential Event of Default any such Domestic Subsidiary is a Subsidiary Guarantor or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, notwithstanding anything to the contrary contained in the definition of Significant Subsidiaries and shall cause its Subsidiaries to, comply with considering all such equity Investments and all such Investments constituting loans or advances permitted by subsection 7.1(vi) to be assets of the requirements recipient of subsections 6.8 and 6.9 (within such equity Investment or Investment constituting loans or advances for purposes of the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material definition of Significant Subsidiary, any such Domestic Subsidiary, together with all other Domestic Subsidiaries of Company (cother than Domestic Significant Subsidiaries) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be have made additional Investments (in Pro Forma Compliancethe form of equity Investments or Investments constituting loans or advances), and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is would not less than $25,000,000collectively constitute a Domestic Significant Subsidiary;
(vii) so long as no Event Company may make and own Investments in an aggregate amount equal to the amount of Default has occurred compensation deferred by officers and is continuing, employees of Company pursuant to the Korn/Ferry Executive Capital Accumulation Plan;
(viii) Company and its Subsidiaries may make additional Investments Permitted Acquisitions in any Subsidiary that is an aggregate amount not a Subsidiary Guarantorto exceed $100,000,000 for all such Permitted Acquisitions since the Restatement Date; provided that Company has delivered to Administrative Agent an Officer’s Certificate stating that the amount of all such Investments does not proposed acquisition complies with clauses (together with Indebtedness permitted by subsection 7.1(v)iii) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (Biv) of the share capital definition of Permitted Acquisition and attaching financial information and calculations in form and substance reasonably satisfactory to Administrative Agent required to confirm such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;statement; and
(viiiix) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time2,500,000.
Appears in 1 contract
Investments; Acquisitions. Company shall notNo Loan Party will, and shall not nor will it permit any of its 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:
(ia) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, ;
(b) Loan Parties and their Subsidiaries may continue to own the aggregate amount of Cash and Cash Equivalents permitted to be Investments owned by them as of the Amendment No. 3 Effective Date in any Loan Party and their 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 Subsidiaries may make intercompany loans to the extent permitted under Section 6.1(e);
(d) Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive daysmay make Consolidated Capital Expenditures;
(iie) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date and described in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary GuarantorSchedule 6.3 annexed hereto;
(iiif) Company Parent and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers Officers or other employees of Company Company, Parent or its Subsidiaries in connection with such officersOfficers’ or employees’ acquisition of shares of Company’s Capital Stock, so long as no cash Cash is actually advanced by Company Company, Parent or any of its Subsidiaries to such officers Officers or employees in connection with the acquisition of any such obligations;
(xg) Company and its Subsidiaries may receive make and hold promissory notes own Investments constituting non-Cash proceeds of sales, transfers and other non-cash consideration received in connection with any Asset Sale dispositions of property to the extent permitted by subsection 7.7Section 6.7;
(xih) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiii) Company and its Subsidiaries may make any transaction Restricted Junior Payment expressly permitted by subsections 7.5 Section 6.5 (it being understood that any such Restricted Junior Payment may be made in the form of an intercompany loan or 7.7advance);
(xiiij) depositsCompany and its Subsidiaries may acquire Investments (including debt obligations) received in the ordinary course of business by Company or any of its Subsidiaries in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, prepayments and extensions other disputes with, customers and suppliers arising out of trade credit in the ordinary course of business;
(xivk) Company and its Subsidiaries may acquire Investments of any Person in existence at the time such Person becomes a 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 Subsidiary;
(l) Company and its Subsidiaries may make or continue to hold Investments resulting from deposits referred to in paragraph (c) of the Investments 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 its 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 $1,000,000 at any time outstanding, provided that such loan or advance is not made in material violation of any law;
(o) Company and its 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, (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 Schedule 7.3B annexed heretothe 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 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 in connection with all such acquisitions shall not exceed, in the aggregate, the sum of (i) $100,000,000, plus (ii) an amount such that the Incurrence Ratio as of such date, calculated on a Pro Forma Basis after giving effect to such acquisition, would be less than 3.00:1.00 (provided that (x) no more than $20,000,000 of such aggregate consideration may be in the form of seller financing permitted under Section 6.1; and (y) 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 $50,000,000), plus (iii) the then-applicable Available Amount, (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 Subsidiary of a Loan Party;
(p) Company and its Domestic Subsidiaries may make and own Investments in Foreign Subsidiaries in an aggregate amount not to exceed in the aggregate at any time $10,000,000 plus the then-applicable Available Amount; and
(q) in addition to Investments otherwise expressly permitted by this Section, Company and its Subsidiaries may make Investments not exceeding in the aggregate at any time $10,000,000 plus the then-applicable Available Amount;
(r) Foreign Subsidiaries may make and own Investments in other Foreign Subsidiaries;
(s) in addition to Investments otherwise expressly permitted by this Section, Company and its Subsidiaries may make additional Investments under Section 6.3(o), Section 6.3(p) and Section 6.3(q) so long as (i) no Potential Event of Default or Event of Default shall have occurred and be continuing and (ii) the Incurrence Ratio as of such date calculated on a Pro Forma Basis after giving effect to such Investment, would be less than 3.00:1.00;
(t) the acquisition by Parent, Company or any Subsidiary of Company of Repurchase Offer Loans; and
(u) Parent and its Subsidiaries may make NMTC Investments; provided that the aggregate fair market value amount of such NMTC Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) 60,000,000 at any one time.
Appears in 1 contract
Investments; Acquisitions. Company Holdings and Borrowers shall not, and shall not permit any of its their respective Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company Borrowers and its their Domestic Subsidiaries may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company So long as no Event of Default or Potential Event of Default has occurred and its is continuing, Foreign Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company Borrowers may make and in any Subsidiaries of Company (and may convert any such own Investments in the form Cash Equivalents in an aggregate principal amount not to exceed $2,000,000 at any time outstanding;
(iii) Holdings, each Borrower and each Wholly-Owned Domestic Subsidiary of Indebtedness into a Borrower may make and own additional equity Investments in the form of Capital Stock), their respective Wholly-Owned Domestic Subsidiaries and Company may make additional equity Investments in Arris;
(iv) Each Borrower and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(ivv) Company Each Borrower and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(vvi) Company Each Borrower and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vivii) Company and its Subsidiaries may acquire any business, division, line So long as no Event of Default or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have has occurred and be continuing at is continuing, Borrowers may consummate Permitted Acquisitions; provided that each of the time such acquisition occurs or immediately after giving effect thereto, following conditions is satisfied:
(a) the Acquired Business is engaged in a line of business that the Borrower and their Subsidiaries are permitted to engage in under subsection 7.11
(b) the Acquired Business becomes a Subsidiary Guarantor or is acquired by a Borrower or a Subsidiary Guarantor in such Permitted Acquisition; 128 138
(c) the aggregate amount of consideration paid by the Borrowers for all Permitted Acquisitions (i) in any Fiscal Year shall not exceed $10,000,000 and (ii) during the term of this Agreement shall not exceed $25,000,000;
(d) concurrently with the consummation of such Permitted Acquisition, Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, Permitted Acquisition;
(ce) all representations the Administrative Agent shall have completed an audit of the Inventory and warranties contained herein Accounts to be acquired as part of such Acquired Business and in shall have determined the other Loan Documents extent to which such Account and Inventory shall be true included as Eligible Accounts and correct in all material respects with Eligible Inventory immediately after the same effect as though such representations and warranties had been made on and as of the date consummation of such acquisition Permitted Acquisition;
(both before and after giving effect thereto), unless stated f) Company shall deliver to relate to a specific earlier dateAdministrative Agent an Officer's Certificate, in which case such representations form and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably substance satisfactory to Administrative Agent Agent, (1) certifying that no Potential Event of Default or Event of Default shall then exist or shall occur as a result of such other financial statementsPermitted Acquisition, in each case, available to Company and (II2) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisitionPermitted Acquisition and to all Indebtedness to be incurred or assumed or repaid in connection with or as consideration for such Permitted Acquisition, Company and its Subsidiaries shall the Borrowers will be in compliance with the financial covenants set forth in subsection 7.6, calculated on a Pro Forma ComplianceBasis, as of the last day of the four Fiscal Quarter period most recently ended prior to the date of the proposed Permitted Acquisition for which the relevant financial information is available and (e3) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments demonstrating that after giving effect to such acquisition Permitted Acquisition, Excess Availability immediately after the consummation of such Permitted Acquisition shall be at least $25 million; provided, however, that in determining such Excess Availability, Accounts and any related transactionsInventory acquired in such Permitted Acquisition shall only be included in determining such Excess Availability to the extent that Administrative Agent has determined, is not less than $25,000,000pursuant to the audit described in clause (e) above, that such Accounts will qualify as Eligible Accounts or Eligible Inventory;
(viig) prior to the consummation of any Permitted Acquisition, Borrowers shall deliver to Administrative Agent to the extent available from the applicable Seller of the Acquired Business a copy of (i) financial statements of the Person or business so acquired for the immediately preceding four consecutive Fiscal Quarter period corresponding to the calculation period for the financial covenants in the immediately preceding clause and (ii) audited or reviewed financial statements of the Person or business to be so acquired for the fiscal year ended within such period of such Person;
(viii) Borrowers and their Wholly-Owned Domestic Subsidiaries may make additional Investments in their respective Wholly-Owned Foreign Subsidiaries (other 129 139 than any Mexican Subsidiary that is both a Material Subsidiary and a Subsidiary Guarantor); provided that the aggregate amount of all such Investments made in all Foreign Subsidiaries and the aggregate principal amount of all Indebtedness owed by all of the Foreign Subsidiaries (other than the Mexican Subsidiaries) of the Borrowers pursuant to subsection 7.1(iv) shall not exceed $5,000,000 at any time;
(ix) So long as no Default or Potential Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries Borrowers may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;10,000,000 plus any cash interest or dividends received in connection with any such Investment; and
(ixx) Company may acquire and hold obligations of one or more of its officers or other employees of Company or its Subsidiaries in connection with such officers’ ' or employees’ ' acquisition of shares of Company’s Capital StockHoldings' common stock, so long as no cash is actually advanced by Company Holdings or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;.
(xxi) Company and its Subsidiaries Borrowers may receive and hold promissory notes and other non-cash consideration Investments received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments the ordinary course of business in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit third parties created in the ordinary course of business;
(xii) Borrowers and their Subsidiaries may make Investments consisting of non-cash consideration received in connection with sales of assets permitted pursuant to subsection 7.7(v) in an aggregate outstanding amount not to exceed $5,000,000 at any time;
(xiii) Borrowers and their Subsidiaries may make Investments consisting of non-cash consideration received in connection with sales of assets pursuant to subsection 7.7(vi) to the extent permitted by such subsection;
(xiv) Company may make Investments consisting of non-cash consideration received in connection with sales of assets pursuant to subsection 7.7(x) to the extent permitted by such subsection;.
(xv) Holdings and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value investments consisting of such Investments (deposit accounts maintained by Holdings and its Subsidiaries as determined as of the date each such Investment is made) shall not exceed $42,000,000permitted by subsection 6.10; and
(xvxvi) So long as no Event of Default or Potential Event of Default has occurred and is continuing, Company may make and own Investments by Company or any Subsidiary Guarantor in any Indebtedness of their respective Subsidiaries (1) consisting the Development Authority of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness Fulxxx County incurred in connection with Investments permitted pursuant to the foregoing clause (1), Tax Abatement Transaction Documents in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does an aggregate principal amount not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event to exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) 60,000,000 at any time.
Appears in 1 contract
Samples: Credit Agreement (Arris Group Inc)
Investments; Acquisitions. Company Holdings shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries Subsidiary Guarantors may continue to make and own equity Investments in other Subsidiary Guarantors and Holdings may own the Investments owned by them as of the Closing Date it in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary GuarantorCompany;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Holdings, Company or any Subsidiary may make loans to their respective employees for the purchase of shares of the Capital Stock of Holdings; provided that the aggregate principal amount of all such loans at any time outstanding does not exceed $10,000,000 during the term of the Agreement; and such Person pledges any notes evidencing such loans to Administrative Agent for the benefit of Lenders pursuant to the Security Agreement, and that the proceeds of the sale of such Capital Stock are promptly contributed by Holdings to Company;
(vii) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiiviii) any transaction Company and its Subsidiaries may receive Investments in connection with permitted by subsections 7.5 or 7.7Asset Sales pursuant to subsection 7.7(iii) and other permitted sales of assets under subsection 7.7(v); provided that all such Investments are pledged to Administrative Agent for the benefit of Lenders pursuant to the Security Agreement;
(xiiiix) deposits, prepayments and extensions Holdings may repurchase shares of trade credit in Holdings Capital Stock (or any options or rights to acquire such Capital Stock) from any former or current employee of Holdings or its Subsidiaries to the ordinary course of businessextent permitted under subsection 7.5;
(xivx) Company and its Subsidiaries may acquire assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) (in each case, a “Permitted Acquisition”) and continue to own such assets after the acquisition thereof; provided that (i) the aggregate amount of Cash consideration paid by Company and its Subsidiaries for Permitted Acquisitions shall not exceed $5,000,000 in any one Fiscal Year or $15,000,000 in the aggregate, and (ii) the aggregate amount of consideration consisting of equity Securities paid by Company and its Subsidiaries for Permitted Acquisitions shall not exceed $5,000,000; and provided further that (i) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 with respect to each such acquisition that results in a Person becoming a Subsidiary, (ii) Company shall have delivered a disclosure statement updating each of the Schedules to this Agreement and the other Loan Documents to reflect any factual revisions or modifications to the information set forth therein resulting from such acquisition; provided that any such update which alters the substantive effect of any representation or warranty, covenant or any other term or condition of this Agreement or any other Loan Document or which discloses an event or circumstance that, in any case, would otherwise require the consent of Administrative Agent, Requisite Lenders or Lenders to such modification, event or circumstance, shall not constitute a modification of this Agreement or any other Loan Document or a permitted disclosure hereunder or thereunder, and shall not excuse any Event of Default or Potential Event of Default which may otherwise arise in connection therewith, without written consent required hereunder of Administrative Agent, Requisite Lenders or Lenders, as the case may be; (iii) after giving effect to such acquisition, Company and its Subsidiaries (1) shall not be engaged in any business not permitted by subsection 7.11, (2) shall be in compliance on a pro forma basis after giving effect to such acquisition with each of the financial covenants contained in subsection 7.6, (3) no Event of Default or Potential Event of Default shall have occurred and be continuing or would result from such acquisition, (4) the representations and warranties in Section 5 hereof (as supplemented in accordance with (ii) above) shall be true, correct and complete in all material respects on and as of the Permitted Acquisition closing date to the same extent as though made on and as of that date (or, to the extent such representations and warranties specifically relate to an earlier date, such representations and warranties shall have been true, correct and complete in all material respects on and as of such earlier date), and (5) Company shall have delivered to Administrative Agent and the Lenders an Officer’s Certificate to the effect set forth in the foregoing clauses (1) through (4) and a Compliance Certificate to evidence clause (2); and (iv) on or before the Permitted Acquisition closing date, Lenders shall have received from Company such other documents and information (including financial information) in respect of such Permitted Acquisition as any Lender may (through Administrative Agent) reasonably request;
(xi) Company and its Subsidiaries may make and own Investments deemed to arise out of guaranties which are otherwise permitted by this Agreement;
(xii) Company and the Subsidiary Guarantors may make and own Investments in Foreign Subsidiaries, provided that the amount of all such Investments made from and after the Closing Date minus the amount of all cash dividends, distributions and other payments received by Company or any of the Subsidiary Guarantors in respect of such Investments after the Closing Date shall not at any time exceed $5,000,000;
(xiii) Foreign Subsidiaries may make and own Investments in the Company or any of its Subsidiaries; and
(xiv) Company and the Subsidiary Guarantors may make and own other Investments in addition to the Investments described otherwise permitted in Schedule 7.3B annexed heretothis subsection 7.3; provided that the aggregate fair market value amount of such Investments (as determined as of the date each such Investment is made) shall does not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time1,000,000.
Appears in 1 contract
Investments; Acquisitions. Company shall notThe Parent Guarantor, the Borrower, and their respective Subsidiaries Indebtedness shall not permit make any of its Subsidiaries toInvestments or acquire any Properties, directly or indirectlyother than (collectively, make or own any Investment in any 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 Person, or any division or line of business of any Person except:“Permitted Investments”):
(i) Company and its Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;Permitted Capital Expenditures,
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;Loan Parties,
(iii) Company and its Investments in Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans which are not Loan Parties to the extent permitted required in order to fund operating deficits of such Subsidiaries (including any debt service or guarantees of any Indebtedness of such Subsidiaries existing on the First Amendment Effective Date) and are not otherwise prohibited under subsection 7.1(v);this Agreement,
(iv) Company and its Investments by Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;which are not Loan Parties in other Subsidiaries which are not Loan Parties,
(v) Company Investments in Unconsolidated Affiliates that are required to be made pursuant to such entities’ organizational documents and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of not otherwise prohibited under this subsection 7.3;Agreement,
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at Investments constituting the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount Acquisition of any Net Securities Proceeds from Eligible Property acquired in an exchange or swap of real property assets in a transaction covered by Section 1031 of the issuance Internal Revenue Code so long as (x) the Subsidiary acquiring such Eligible Property becomes a Subsidiary Guarantor, and (y) such Investments do not, in the aggregate during the Restriction Period, exceed $75,000,000,
(vii) Acquisitions of any Capital Stock, Net Asset Sale Proceeds Eligible Properties which are added as Borrowing Base Properties (and the Subsidiary that owns or Net Insurance/Condemnation Proceeds used to fund ground leases such purchase price Properties are added as Subsidiary Guarantors) or Investments in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any Borrowing Base Properties or Subsidiary Guarantors or Non-Loan Party BB Subsidiaries that own or ground lease such Net Securities Proceeds, solely Borrowing Base Properties to the extent such Net Securities the consideration therefor (x) is funded with Exempt Equity Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that or (ay) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as is Equity Interests of the date of such acquisition Parent Guarantor or the Borrower (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date additional consideration in respect of (A) Investments made in such Subsidiary Investment or Acquisition that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;funded with amounts permitted under Section 10.12(b)(x)),
(viii) Company [intentionally omitted]
(ix) additional Investments in Unconsolidated Affiliates and its Subsidiaries may make and own other Investments which are not Loan Parties in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with 25,000,000 during the acquisition of any such obligations;Restriction Period,
(x) Company additional Acquisitions and its Investments in an aggregate amount during the Restriction Period not to exceed (x) if the Outstanding Amount of Revolving Credit Loans is greater than $0 but does not exceed $200,000,000 immediately after giving effect to such Acquisition or Investment, $100,000,000 so long as such Acquisitions or Investments, in the case of this clause (x), are limited to Acquisitions of Eligible Properties which are added as Borrowing Base Properties (and the Subsidiary that owns or ground leases such Properties are added as Guarantors) or Investments in Borrowing Base Properties or Subsidiary Guarantors or Non-Loan Party BB Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;that own or ground lease such Borrowing Base Properties, or (y) if the Outstanding Amount of Revolving Credit Loans is equal to $0 immediately after giving effect to such Acquisition or Investment, $200,000,000, and
(xi) Company additional Acquisitions and its Subsidiaries may acquire and hold Investments in Securities in connection with to the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) extent the consideration for which therefor is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timefunded solely from Excluded FelCor Net Proceeds.
Appears in 1 contract
Samples: Credit Agreement (RLJ Lodging Trust)
Investments; Acquisitions. Company Each of Parent and Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company Parent and its Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and in Cash Equivalents permitted (and may continue to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive dayshold such Investments notwithstanding that such Investments may no longer qualify as a Cash Equivalent);
(ii) Company Parent and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (Parent, Parent may make and may convert any such own additional equity Investments in the form of Indebtedness into Borrower and Borrower and Subsidiary Guarantors may make and own additional equity Investments in the form of Capital Stock), and Company their respective Subsidiary Guarantors;
(iii) Borrower and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company Borrower and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company Borrower and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company Borrower and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantortheir respective wholly-owned Foreign Subsidiaries; provided that (a) the amount of all such Investments constituting equity Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after 10,000,000 in the aggregate for all such Investments since the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (Bb) the share capital amount of all such Subsidiary that is Investments constituting loans or advances permitted under subsection 7.1(iv) does not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) exceed $10,0000,000 in the aggregate outstanding principal amount at any time for all such Investmentsoutstanding;
(viiivii) Company Borrower and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,00010,000,000;
(ixviii) Company Borrower may acquire and hold obligations of one or more officers or other employees of Company Borrower or its 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's common stock in an aggregate amount at any time outstanding not to exceed $5,000,000 (to the extent that such acquisition and holding do not violate any applicable law or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligationsregulation);
(xix) Company Borrower and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;; 110
(xix) Company Borrower and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company Borrower or any of its Subsidiaries or as security for any such Indebtedness or claim;; and
(xiixi) any transaction permitted by subsections 7.5 or 7.7;
(xiii) depositsafter the Closing Date, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company Borrower and its Subsidiaries may make consummate Permitted Acquisitions upon the Investments described satisfaction of the following conditions:
(a) on the date of consummation of such acquisition (such date being the "PERMITTED ACQUISITION CLOSING DATE" for such acquisition), EBITDA attributable to the New Business or Person so acquired shall have a positive EBITDA for the four Fiscal Quarter period most recently ended (calculated, as applicable, in Schedule 7.3B annexed heretoaccordance with the definition of "Consolidated EBITDA" herein and clause (iv) of the definition of "Pro Forma Basis"); provided, however, that the satisfaction of the condition contained in this clause (a) shall not be required in connection with any Permitted Acquisition in which the aggregate consideration paid by Borrower and its Subsidiaries is less than $10,000,000;
(b) Borrower shall have complied with the requirements of subsections 6.8 and 6.9, to the extent applicable, on or promptly following the Permitted Acquisition Closing Date;
(c) Borrower shall have delivered a disclosure statement updating each of the Schedules to this Agreement and the other Loan Documents to reflect any factual revisions or modifications to the information set forth therein resulting from such acquisition; provided that any such update which alters the substantive effect of any representation or warranty, covenant or any other term or condition of this Agreement or any other Loan Document or which discloses an event or circumstance that, in any case, would otherwise require the consent of Administrative Agent, Requisite Lenders or Lenders to such modification, event or circumstance, shall not constitute a modification of this Agreement or any other Loan Document or a permitted disclosure hereunder or thereunder, and shall not excuse any Event of Default or Potential Event of Default which may otherwise arise in connection therewith, without written consent required hereunder of Administrative Agent, Requisite Lenders or Lenders, as the case may be;
(d) (x) the sum of (1) the aggregate fair market value amount of Cash consideration paid by Borrower and its Subsidiaries for Permitted Acquisitions and (2) the aggregate amount of Indebtedness assumed or created in connection with any such Investments (as determined as of the date each such Investment is made) Permitted Acquisitions, shall not exceed $42,000,00015,000,000 in any Fiscal Year and (y) the aggregate amount of consideration consisting of equity Securities of Holdings or Parent paid by Borrower and its Subsidiaries for Permitted Acquisitions shall not exceed $15,000,000 in any Fiscal Year;
(e) after giving effect to such acquisition, (1) Borrower and its Subsidiaries shall not be engaged in any business not permitted by subsection 7.11, (2) Borrower shall be in compliance on a pro forma basis after giving effect to such acquisition (and any Indebtedness incurred in connection therewith) with each of the financial covenants contained in subsection 7.6, (3) no Event of Default or Potential Event of Default shall have occurred and be continuing or would result from such acquisition, and (4) Borrower shall have delivered to Administrative Agent an Officer's Certificate to the effect set forth in the foregoing clauses (1) through (3) and a Compliance Certificate to evidence clause (2);
(f) (x) prior to the consummation of any Permitted Acquisition having EBITDA attributable to the New Business or Person so acquired (calculated, as applicable, in accordance with the definition of "Consolidated EBITDA" herein or such other definition of EBITDA as may be reasonably acceptable to Administrative Agent for the four Fiscal Quarter period most recently ended prior to the Permitted Acquisition Closing Date (the "RELEVANT PERIOD")) equal to or greater than (A) 5% of Consolidated EBITDA of Parent and its Subsidiaries (calculated without giving effect to such Permitted Acquisition) for the Relevant Period or (B) 10% of the total consolidated revenues of Parent and its Subsidiaries (calculated without giving effect to such Permitted Acquisition) for the Relevant Period, Borrower shall deliver to Administrative Agent a copy, prepared in conformity with GAAP (subject to year-end adjustments and the absence of footnotes), of audited financial statements of the Person or New Business so acquired as of the last day of the Relevant Period and (y) prior to the consummation of any Permitted Acquisition having EBITDA attributable to the New Business or Person so acquired (calculated, as applicable, in accordance with the definition of "Consolidated EBITDA" herein or such other definition of EBITDA as may be reasonably acceptable to Administrative Agent for the Relevant Period) less than (A) 5% of Consolidated EBITDA of Parent and its Subsidiaries (calculated without giving effect to such Permitted Acquisition) for the Relevant Period or (B) 10% of total consolidated revenues of Parent and its Subsidiaries (calculated without giving effect to such Permitted Acquisition) for the Relevant Period, Borrower shall deliver to Administrative Agent a copy, prepared in conformity with GAAP (subject to year-end adjustments and the absence of footnotes), of reviewed financial statements of the Person or New Business so acquired as of the last day of the Relevant Period; and
(xvg) Investments by Company on or any Subsidiary Guarantor before the Permitted Acquisition Closing Date, Lenders shall have received from Borrower such other documents and information (including financial information) in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making respect of such cash Investment Permitted Acquisition and (b) in New Business as any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.Lender may reasonably request. 112
Appears in 1 contract
Samples: Credit Agreement (Brand Services)
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments wholly-owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Domestic Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective wholly-owned Domestic Subsidiaries;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company and its Domestic Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) having a fair market value not in excess of $75,000,000 15,000,000 in any individual case (provided that such amount may be increased by one Fiscal Year and $40,000,000 in the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), aggregate and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Domestic Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (cb) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments pro forma compliance with all financial covenants after giving effect to such acquisition and any related transactions, is not less than $25,000,000(c) no Event of Default shall have occurred and be continuing prior to such acquisition or result from such acquisition;
(vii) so long as any Foreign Subsidiary of Company may acquire assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) having a fair market value not in excess of $7,500,000 in any one Fiscal Year and $20,000,000 in the aggregate and continue to own such assets after the acquisition thereof; provided that (a) Company shall cause such Foreign Subsidiary to comply with the requirements of subsection 6.8 with respect to each such acquisition that results in a Person becoming a Subsidiary, (b) Company shall be in pro forma compliance with all financial covenants after giving effect to such acquisition and (c) no Event of Default has have occurred and is continuing, be continuing prior to such acquisition or result from such acquisition;
(viii) Company and its wholly-owned Domestic Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantortheir respective Foreign Subsidiaries; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 5,000,000 (net plus the amount of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company all loans or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capitaladvances permitted under subsection 7.1(iv)) in the aggregate outstanding at any time for all such InvestmentsInvestments since the Closing Date, including all Contingent Obligations of Company pursuant to subsections 7.4(viii) and (ix);
(viiiix) Company and its Domestic Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,0005,000,000;
(ixx) Company may acquire and hold obligations of one or more officers or other employees of Company or its Subsidiaries in connection with (i) such officers’ or employees’ acquisition of shares of Company’s Capital Stock, Holdings’ common stock (or the common stock of a parent entity of Holdings that directly owns 50% or more of the Voting Stock of Holdings) so long as no cash is actually advanced by Company or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligationsobligations or (ii) in connection with the payment of income taxes on employee-owned stock of Holdings, Company or its Subsidiaries (in an aggregate amount during any Fiscal Year not in excess of $1,000,000);
(xxi) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xixii) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries Subsidiaries, including Securities received in connection with the bankruptcy, insolvency or reorganization of the Person obligated on such Indebtedness or claim, or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) depositsCompany and its Subsidiaries may make loans (financing equipment sold by Company and its Subsidiaries) or equipment leases to customers doing business with Company and its Subsidiaries in an aggregate principal amount not to exceed (i) $20,000,000 at any time on or prior to June 30, prepayments 2006, (ii) $30,000,000 at any time after June 30, 2006 but on or prior to June 30, 2007 and extensions (iii) $40,000,000 at any time after June 30, 2007 (with the principal amount of trade credit such leases to be deemed to be equal to the discounted present value, at a market rate of interest, of the remaining rental payments plus any residual value of the leased equipment as shown on Company’s financial statements); provided that, Company or such Subsidiary has filed appropriate UCC financing statements to protect its interest in all such financed equipment to the ordinary course extent such equipment has, at the time of business;such transaction, a fair market value in excess of $10,000; and
(xiv) Company and its Subsidiaries may make the Investments described loans to customers doing business with Company and its Subsidiaries in Schedule 7.3B annexed hereto; provided that the aggregate fair market value settlement of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by accounts receivable owing to Company or any Subsidiary Guarantor of its Subsidiaries from such customer in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made an aggregate principal amount not to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) 7,500,000 at any one time.
Appears in 1 contract
Samples: Credit Agreement (FTD Inc)
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 capital stock or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and in Cash Equivalents permitted to be owned by Company and its Domestic Foreign Subsidiaries shall not exceed $35,000,000 may make and own similar Investments customary for any period of five (5) consecutive daysthe countries in which they conduct business;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Dominant Domestic Subsidiaries may make and own additional equity Investments in the Company or any Subsidiary Guarantortheir respective Dominant Domestic Subsidiaries;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company and its Subsidiaries may acquire make finance and enter into, and receive contingent payment rights received in sales under subsection 7.11 under, installment sales contracts in the ordinary course of business and consistent with past practices;
(vii) Company and its Subsidiaries may incur and remain liable with respect to recourse obligations arising under vendor financings provided to customers;
(viii) Company and Domestic Subsidiaries may make and own Investments in Foreign Subsidiaries; provided that (i) with respect to Investments by Company, such Investments are consistent with prior practices, and (ii) with respect to Investments by Domestic Subsidiaries, such Investments after the Closing Date do not exceed in the aggregate $10,000,000 at any business, division, line or assets time; and
(including Capital Stock ix) Company and including Capital Stock of its Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (may make other Investments having a fair market value determined at the time of purchase thereof) made not in excess of $75,000,000 10,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), one Fiscal Year and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections subsection 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make the Investments described in Schedule 7.3B annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any time.
Appears in 1 contract
Investments; Acquisitions. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 Person, or any division or line of business of any Person Person, except:
(i) Company and its Subsidiaries may make and own Investments consisting of in Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(vpursuant to subsections 7.1(iii), (iv) and (v);
(iii) any Foreign Subsidiary may make and own Investments in any other Foreign Subsidiary;
(iv) Company and its Subsidiaries Subsidiary Guarantors may make Consolidated Capital Expenditures permitted by subsection 7.8and own Investments in Company and Subsidiary Guarantors;
(v) Company and its Subsidiaries may continue to own the Investments described in Schedule 7.3A annexed hereto (owned by them and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with 7.3 of the other provisions of this subsection 7.3Company Disclosure Letter;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and make capital expenditures in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line ordinary course of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantor; provided that the amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) in the aggregate outstanding at any time for all such Investments;
(viii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(x) Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiiviii) Company and its Subsidiaries may acquire assets (including Capital Stock and including Capital Stock of Subsidiaries of Company formed in connection with any such acquisition) of any Person in the same or similar line of business (or any related, ancillary or complementary business, including business services) as Company (a) through the issuance of Capital Stock of Company, (b) with Cash, (c) with the proceeds of Permitted Senior Indebtedness or Permitted Subordinated Indebtedness or (d) with any combination of the foregoing, in each case if after giving effect to such acquisition, no Event of Default or Potential Event of Default shall have occurred or be continuing; provided that (1)(A) after giving effect to such acquisition, at least $50,000,000 is available in Revolving Loan Commitments, and (B) the pro forma ratio of Consolidated Total Debt to the sum of Consolidated Total Debt and Stockholders’ Equity (after giving effect to such acquisition) is less than 35% or (2) Requisite Lenders consent thereto (each a “Permitted Acquisition”); provided, however, that none of the restrictions in the preceding proviso shall apply to any proposed acquisition if, after giving pro forma effect thereto, the Company Debt Rating shall be at least Ba1 from Mxxxx’x and at least BB+ from S&P;
(ix) any transaction Person who becomes a Subsidiary of Company or who is merged or consolidated into a Subsidiary of Company after the date hereof pursuant to a Permitted Acquisition may continue to own Investments owned by such Person on the date of such Permitted Acquisition; provided that (a) such Investment was not incurred in connection with, or anticipation or contemplation of, such Permitted Acquisition and (b) neither Company nor any of its Subsidiaries (other than such Person or the Subsidiary of Company into which such Person is merged or consolidated) shall become liable with respect to such Investment;
(x) Company or any of its Subsidiaries may make and own Investments consisting of non-Cash consideration in the form of Capital Stock, notes or similar obligations in connection with any sale of assets permitted by subsections 7.5 or pursuant to subsection 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xivxi) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed the greater of (a) $50,000,000 at any time or (b) 5% of Consolidated Tangible Assets (determined as of the end of the immediately preceding Fiscal Quarter) at the time Company or such Subsidiary makes such Investment;
(xii) Company and its Subsidiaries may make Investments described (including capital contributions in Schedule 7.3B annexed heretoor loans to) Joint Ventures in the ordinary course of business; and
(xiii) Company and its Subsidiaries may make and own additional Investments in Subsidiaries and Joint Ventures in an amount not to exceed the greater of (a) $50,000,000 or (b) 5% of Consolidated Tangible Assets (determined as at the end of the immediately preceding Fiscal Quarter); provided that the aggregate fair market value restriction as to the amount of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xv) Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to this subsection 7.3(xiii) shall not apply to any such Investments if, after giving pro forma effect thereto, the foregoing clause Company Debt Rating shall be at least Ba1 from Mxxxx’x and at least BB+ from S&P (it being understood that if the Company Debt Rating shall cease to be at least Ba1 from Mxxxx’x and at least BB+ from S&P, the limitation under this proviso shall (1), in each case so long as ) be increased to the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making then outstanding amount of such cash Investment Investments made while the Company Debt Rating was at least Ba1 from Mxxxx’x and at least BB+ from S&P and (b2) in any event exceed be decreased as such Investments are sold or otherwise disposed of but not below the greater of (x) $50,000,000 or (taken together with y) 5% of Consolidated Tangible Assets (determined as at the amount end of all other cash Investments then outstanding under this subsection 7.3(xvthe immediately preceding Fiscal Quarter)) at any time.
Appears in 1 contract
Samples: Credit Agreement (Urs Corp /New/)
Investments; Acquisitions. Company Holdings shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company Holdings and its Subsidiaries may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;
(ii) Company Holdings and its wholly-owned Domestic Subsidiaries may continue to make and own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such additional equity Investments in their respective wholly-owned Domestic Subsidiaries that are Subsidiary Guarantors;
(iii) the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries may make and own additional Investments in intercompany loans to the Company or any and the Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans Guarantors to the extent permitted under subsection 7.1(v);
(iv) the Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company Holdings and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) the Company and its Domestic Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for having an aggregate purchase price (determined at the time of purchase thereofincluding cash paid and debt incurred or assumed) not in excess of $75,000,000 150,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), one Fiscal Year and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Domestic Subsidiaries to, comply with the requirements of subsections subsection 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary; and provided further that neither the Company, nor any of its Subsidiaries shall consummate (I) an acquisition of a going concern or line of business or (II) a transaction that results in a Person becoming a Subsidiary (such going concern, line of business or new Subsidiary, a "Subject Business"), unless:
(a) each Subject Business is in a line of business in which the Company and its Subsidiaries are permitted to engage under subsection 7.11B, 115 CREDIT AGREEMENT
(b) prior to the consummation of such transaction, the Governing Body of each Subject Business shall have recommended to the holders of the Capital Stock of such Subject Business that they vote in favor of approving such transaction (or that they tender their shares, in the case of a stock acquisition),
(c) if (I) the purchase price (including cash paid and debt incurred or assumed) for the Subject Business (when aggregated with the purchase price of all representations Subject Businesses acquired as part of the same transaction or series of related transactions) is $75,000,000 or less and warranties (II) the Liquidity is at least $275,000,000, determined on a pro forma basis after giving effect to the transaction (or series of related transactions), then the Company shall give notice to the Administrative Agent and the Collateral Agent within 30 days after the consummation of the transaction (or the first material transaction in such series),
(d) if (I) the purchase price (including cash paid and debt incurred or assumed) for the Subject Business (when aggregated with the purchase price of all Subject Businesses acquired as part of the same transaction or series of related transactions) is more than $75,000,000 or (II) the Liquidity is less than $275,000,000, determined on a pro forma basis after giving effect to the transaction (or series of related transactions), then, at least 20 days prior to the consummation of such transaction (or the first material transaction in such series), the Company shall have
(1) given notice to the Administrative Agent and the Collateral Agent,
(2) delivered copies of all material agreements and other documents relating to such transaction to the Administrative Agent and the Collateral Agent,
(3) delivered audited historical financial statements prepared in accordance with GAAP (to the extent available; otherwise, unaudited historical financial statements (prepared in accordance with GAAP to the Company's knowledge) to the extent available; otherwise, such financial information as may be reasonably acceptable to the Administrative Agent and the Collateral Agent, each in the exercise of its reasonable credit judgment) of the Person to be acquired, prepared in reasonable detail, together with pro forma financial information, satisfactory to the Administrative Agent and the Collateral Agent (in each case in the exercise of its reasonable credit judgment), and showing pro forma compliance with all covenants contained herein in this Agreement and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date most recent Fiscal Quarter for which financial statements are available from both Holdings and its Subsidiaries and the Subject Business, treating the transaction (or series of related transactions) as though it had been consummated on the first day of the four-Fiscal Quarter period ended on the last day of such acquisition Fiscal Quarter, and 116 CREDIT AGREEMENT
(4) given authorization to the Agents to distribute copies of all such items to the Lenders,
(e) after giving pro forma effect to such transaction, the Liquidity shall be at least $150,000,000, and
(f) both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-pro forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisitiontransaction, the Company and its Subsidiaries shall be in Pro Forma Compliancecompliance with all covenants contained in this Agreement and the other Loan Documents, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization no Event of Revolving Loan Commitments after giving effect to Default or Potential Event of Default shall exist and be continuing or result from such acquisition and any related transactions, is not less than $25,000,000transaction;
(vii) so long as no Event of Default has occurred and is continuing, the Company and its wholly-owned Subsidiaries may make additional equity Investments in any Subsidiary that is not a Subsidiary Guarantorin, and loans and advances permitted under subsection 7.1(vi) to, their respective wholly-owned Foreign Subsidiaries; provided that (a) the amount of all such Investments constituting equity Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after 5,000,000 in the aggregate for all such Investments since the Closing Date in respect of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (Bb) the share capital amount of all such Subsidiary that is Investments constituting loans or advances permitted under subsection 7.1(vi) does not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) exceed $5,000,000 in the aggregate outstanding principal amount at any time for all such Investmentsoutstanding;
(viii) the Company and its wholly-owned Subsidiaries may make additional equity Investments in, and loans and advances permitted under subsection 7.1(vii) to, their respective wholly-owned Immaterial Subsidiaries; provided that (a) the amount of all such Investments constituting equity Investments does not exceed $15,000,000 in the aggregate for all such Investments since the Closing Date and (b) the amount of all such Investments constituting loans or advances permitted under subsection 7.1(vii) does not exceed $15,000,000 in aggregate principal amount at any time outstanding;
(ix) the Company and its Subsidiaries may (a) continue to own their Investments in the Existing Receivables SPV, (b) make and own other Investments capital contributions to Receivables SPV's in an aggregate amount not to exceed at any time $25,000,000;25,000,000 and (c) make and own Investments in Indebtedness of Receivables SPV's constituting the non-cash portion of the purchase price of Accounts
(ixx) Company Holdings may acquire and hold obligations of one or more officers or other employees of Company Holdings or its Subsidiaries in connection with such officers’ ' or employees’ ' acquisition of shares of Company’s Capital StockHoldings's common stock, so long as no cash is actually advanced by Company Holdings or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations, and so long as the incurrence of such obligations complies with applicable law;
(xxi) the Company and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;; 117 CREDIT AGREEMENT
(xixii) the Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to the Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company and its Subsidiaries may make and own the Investments described in on Schedule 7.3B 7.3 annexed hereto; provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; and
(xvxiv) Holdings and its Domestic Subsidiaries may make and own other Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made an aggregate amount not to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timetime $10,000,000.
Appears in 1 contract
Investments; Acquisitions. Company Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 capital stock or other ownership interests of any Person, or any division or line of business of any Person except:
(i) Company Borrower and its Subsidiaries may make and own Investments consisting of Cash and in Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and Cash Equivalents permitted to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive days;125
(ii) Company Borrower and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date in the Company and in any Subsidiaries of Company (and may convert any such Investments in the form of Indebtedness into Investments in the form of Capital Stock), and Company and its Subsidiaries Guarantors may make and own additional Investments in Subsidiaries that are Guarantors or in Borrower; any Foreign Loan Party may make and own Investments in any other Foreign Loan Party in the Company same Approved Jurisdiction (except for Investments by any Australian Joy Loan Party in any Australian P&H Loan Party and any Investment by any Australian P&H Loan Party in any Australian Joy Loan Party), in any other Foreign Subsidiary to the extent a part of the UK Restructuring or as otherwise permitted pursuant to subsection 7.1(iv); any Subsidiary which is not a Guarantor or Foreign Loan Party may make and own Investments in Borrower, any Guarantor and any Foreign Loan Party or any other Subsidiary Guarantorwhich is not a Guarantor or a Foreign Loan Party;
(iii) Company and its Subsidiaries Borrower may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans own Intercompany Loans to Foreign Loan Parties to the extent permitted under subsection 7.1(v7.1(iv); Borrower may make Intercompany Loans to Beloit under the Beloit Note in an aggregate initial principal amount which does not exceed $15,000,000 and may own any collateral recovered as a result of the foreclosure thereof, including without limitation the APP Note;
(iv) Company Borrower and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company Borrower and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3------------ hereto;
(vi) Company Borrower and its Domestic Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisitioncapital stock or other ownership interests) for an aggregate purchase price (determined at the time of purchase thereof) having a fair market value not in excess of $75,000,000 500,000 in any individual case (provided that such amount may be increased by one Fiscal Year and $3,000,000 in the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), aggregate and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company Borrower shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 6.9 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) 6.10 with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred Borrower, any Guarantor and is continuing, Company and its Subsidiaries any Foreign Loan Party may make and own additional Investments in any Subsidiary that is Subsidiaries which are not a Subsidiary GuarantorGuarantors or Foreign Loan Parties; provided that (a) the aggregate -------- amount of all such Investments does not (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor made after the Closing Date in respect Date, together with the aggregate amount of (A) Investments made in such Subsidiary that is not a Subsidiary Guarantor and (B) the share capital Indebtedness of such Subsidiary that is Subsidiaries under subsection 7.1(iv)(C), does not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) exceed $4,000,000 in the aggregate outstanding at any time for all such Investmentstime;
(viii) Company Borrower and its Subsidiaries may make and own other maintain Investments in an aggregate amount not to exceed at any time $25,000,000;
(ix) Company may acquire and hold obligations of one or more officers or other employees of Company or its 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 or any of its Subsidiaries to such officers or employees received in connection with the acquisition bankruptcy or reorganization of any such obligations;
(x) Company suppliers and its Subsidiaries may receive customers and hold promissory notes in settlement of delinquent obligations of, and other non-cash consideration received disputes with, customers and suppliers, in connection with any Asset Sale permitted by subsection 7.7;
(xi) Company and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement or enforcement of Indebtedness or claims or other obligations due or owing to Company or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xii) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit each case arising in the ordinary course of business;
(xivix) Company Borrower and its Subsidiaries may make the and own Investments described in Schedule 7.3B annexed heretopermitted under subsection 7.7(iv); provided that the aggregate fair market value of such Investments (as determined as of the date each such Investment is made) shall not exceed $42,000,000; andand 126
(xvx) Borrower may make Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted Lender Interest Rate Agreements pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making terms of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timeAgreement.
Appears in 1 contract
Samples: Credit Agreement (Joy Global Inc)
Investments; Acquisitions. Company Each of Parent and Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any 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 or other ownership interest of any Person, or any division or line of business of any Person except:
(i) Company Parent and its Subsidiaries may make and own Investments consisting of Cash and Cash Equivalents; provided that, at any time Revolving Loans or Swing Line Loans are outstanding, the aggregate amount of Cash and in Cash Equivalents permitted (and may continue to be owned by Company and its Domestic Subsidiaries shall not exceed $35,000,000 for any period of five (5) consecutive dayshold such Investments notwithstanding that such Investments may no longer qualify as a Cash Equivalent);
(ii) Company Parent and its Subsidiaries may continue to own the Investments owned by them as of the Closing Restatement Date in the Company and in any Subsidiaries of Company (Parent, Parent may make and may convert any such own additional equity Investments in the form of Indebtedness into Borrower and Borrower and Subsidiary Guarantors may make and own additional equity Investments in the form of Capital Stock), and Company their respective Subsidiary Guarantors;
(iii) Borrower and its Subsidiaries may make and own additional Investments in the Company or any Subsidiary Guarantor;
(iii) Company and its Subsidiaries may (a) become liable in respect of Contingent Obligations permitted by subsection 7.4 and (b) make and incur intercompany loans to the extent permitted under subsection 7.1(v7.1(iv);
(iv) Company Borrower and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(v) Company Borrower and its Subsidiaries may continue to own the Investments owned by them on the Restatement Date and described in Schedule 7.3A 7.3 annexed hereto (and may make incremental Investments contemplated in connection therewith) and any extension or renewal thereof; provided that any additional Investments made with respect thereto shall be permitted only to the extent such Investments are described on Schedule 7.3A or made in accordance with the other provisions of this subsection 7.3hereto;
(vi) Company and its Subsidiaries may acquire any business, division, line or assets (including Capital Stock and including Capital Stock of Subsidiaries formed in connection with any such acquisition) for an aggregate purchase price (determined at the time of purchase thereof) not in excess of $75,000,000 in any individual case (provided that such amount may be increased by the amount of any Net Securities Proceeds from the issuance of any Capital Stock, Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds used to fund such purchase price in accordance with this Agreement, subject, however, to the provisions of subsections 2.4B(iii) and 6.4C hereof (and, with respect to any such Net Securities Proceeds, solely to the extent such Net Securities Proceeds are not applied to increase the limit under subsection 7.8)), and continue to own such assets after the acquisition thereof; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time such acquisition occurs or immediately after giving effect thereto, (b) Company shall, and shall cause its Subsidiaries to, comply with the requirements of subsections 6.8 and 6.9 (within the time period required thereunder or within such other time period as Administrative Agent may permit in its sole discretion) with respect to each such acquisition that results in a Person becoming a Material Subsidiary, (c) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (d) for any such acquisitions Company shall have provided (I) financial statements for any Person (or line of business) acquired in any such acquisition for the last Fiscal Year of such Person or line of business, audited or reviewed by independent certified public accountants reasonably satisfactory to Administrative Agent or such other financial statements, in each case, available to Company and (II) to Administrative Agent a pro-forma Compliance Certificate certified by a Financial Officer of Company and demonstrating that after giving effect to such acquisition, Company and its Subsidiaries shall be in Pro Forma Compliance, and (e) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such acquisition and any related transactions, is not less than $25,000,000;
(vii) so long as no Event of Default has occurred and is continuing, Company Borrower and its Subsidiaries may make additional Investments in any Subsidiary that is not a Subsidiary Guarantortheir respective wholly-owned Foreign Subsidiaries; provided that (a) the amount of all such Investments does not constituting equity Investments (together with Indebtedness permitted by subsection 7.1(v)) exceed $100,000,000 (net of cash amounts paid by other than any Subsidiary that is not a Subsidiary Guarantor to Company or any Subsidiary Guarantor after the Closing Date in respect of (A) such equity Investments made in such Subsidiary that is connection with the consummation of the Aluma Acquisition) does not a Subsidiary Guarantor and (B) the share capital of such Subsidiary that is not a Subsidiary Guarantor, including, without limitation, cash payments that are comprised of dividends, share repurchases, share redemptions or other cash returns on such share capital) exceed $30,000,000 in the aggregate outstanding for all such Investments since the Original Closing Date and (b) the amount of all such Investments constituting loans or advances permitted under subsection 7.1(iv) (other than any such loans or advances made in connection with the consummation of the Aluma Acquisition) does not exceed $30,000,000 in aggregate principal amount at any time for all such Investmentsoutstanding;
(viiivii) Company Borrower and its Subsidiaries may make and own other Investments (a) in an aggregate amount not to exceed at any time $25,000,000;, (b) in an amount not to exceed the Available Excess Cash Flow Amount immediately prior to the making of such Investment or (c) to the extent such Investment is financed with Specified Equity Proceeds within six months after Borrower’s receipt thereof (to the extent such Specified Equity Proceeds shall not have been utilized to make Capital Expenditures pursuant to subsection 7.8(ii)); provided that the amount of Investments permitted under this clause (vii) shall be reduced on a dollar-for-dollar basis by the amount of any Contingent Obligations incurred pursuant to clause (b) of subsection 7.4(vii).
(ixviii) Company Borrower may acquire and hold obligations of one or more officers or other employees of Company Borrower or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of CompanyParent’s Capital Stock, so long as no cash is actually advanced by Company common stock in an aggregate amount at any time outstanding not to exceed $7,500,000 (to the extent that such acquisition and holding do not violate any applicable law or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligationsregulation);
(xix) Company Borrower and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any Asset Sale permitted by subsection 7.7;
(xix) Company Borrower and its Subsidiaries may acquire and hold Investments in Securities in connection with the full or partial satisfaction, settlement satisfaction or enforcement of Indebtedness or claims or other obligations due or owing to Company Borrower or any of its Subsidiaries or as security for any such Indebtedness or claim;
(xiixi) any transaction permitted by subsections 7.5 or 7.7;
(xiii) deposits, prepayments and extensions of trade credit in the ordinary course of business;
(xiv) Company Borrower and its Subsidiaries may make acquire all or substantially all the Investments described in Schedule 7.3B annexed heretoassets of a Person or line of business of such Person, or not less than 100% of the equity interests (other than directors’ qualifying shares) of a Person (referred to herein as the “Acquired Entity”); provided that (a) such acquisition was not preceded by an unsolicited tender offer for such equity interests by, or proxy contest initiated by, Borrower or any of its Subsidiaries; (b) the aggregate fair market value Acquired Entity shall be in a similar line of business as that of Borrower and its Subsidiaries as conducted during the current and most recent calendar year (or in a line of business that is reasonably ancillary or otherwise reasonably related or complementary thereto); and (c) at the time of such Investments transaction (as determined i) both before and after giving effect thereto, no Event of Default or Potential Event of Default shall have occurred and be continuing; (ii) Borrower would be in compliance with each of the financial covenants set forth in subsection 7.6 as of the date each most recently completed period of four consecutive fiscal quarters ending prior to such Investment transaction for which the financial statements and certificates required by subsections 6.1(ii) or 6.1(iii), as the case may be, and 6.1(iv) have been delivered or for which comparable financial statements have been filed with the Securities and Exchange Commission, after giving pro forma effect to such transaction and to any other event occurring after such period as to which pro forma recalculation is madeappropriate (including any other transaction described in this subsection 7.3(xi) occurring after such period) as if such transaction had occurred as of the first day of such period (with respect to any such transaction occurring during any period for which the maximum Leverage Ratio permitted by subsection 7.6B is greater than 3.50:1.00, assuming, for purposes of pro forma compliance with subsection 7.6B, that the maximum Leverage Ratio permitted at the time by such subsection was in fact 0.25 to 1.00 less than the ratio actually provided for in such subsection at such time); (iii) after giving effect to such acquisition, the sum of (x) the amount of unused and available Revolving Loan Commitments and (y) the aggregate amount of unrestricted Cash and Cash Equivalents on hand of the Borrower and its Subsidiaries shall not exceed be less than $42,000,00010,000,000; (iv) Borrower shall have complied with, and shall have caused the Acquired Entity to comply with, the requirements of subsections 6.8 and 6.9, to the extent applicable, on or promptly following the closing date of such acquisition; and (v) Borrower shall have delivered a certificate of a financial Officer, certifying as to the foregoing and containing reasonably detailed calculations in support thereof, in form and substance satisfactory to Administrative Agent (any acquisition of an Acquired Entity meeting all the criteria of this subsection 7.3(xi) being referred to herein as a “Permitted Acquisition”); and
(xvxii) wholly-owned Foreign Subsidiaries may make Investments by Company or any Subsidiary Guarantor in any of their respective Subsidiaries (1) consisting of Capital Stock and/or intercompany notes made to achieve cash repatriation strategies or (2) the consideration for which is the cancellation or other settlement of any corresponding intercompany Indebtedness incurred in connection with Investments permitted pursuant to the foregoing clause (1), in each case so long as the net cash Investment by Company or such Subsidiary Guarantor in connection therewith does not (a) exceed zero after the tenth day following the making of such cash Investment and (b) in any event exceed $50,000,000 (taken together with the amount of all other cash Investments then outstanding under this subsection 7.3(xv)) at any timewholly-owned Foreign Subsidiaries.
Appears in 1 contract
Samples: Amendment Agreement (Brand Energy & Infrastructure Services, Inc)
