Investments and Guaranty Obligations. The Parent Borrower will not, nor will the Parent Borrower permit any of its Restricted Subsidiaries to (i) make any Investment or (ii) be or become obligated under any Guaranty Obligations (to the extent constituting Investments), except: (a) Investments by the Parent Borrower or any of its Restricted Subsidiaries in cash and Cash Equivalents; (b) (i) any endorsement of a check or other medium of payment for deposit or collection, or any similar transaction in the normal course of business and (ii) asset purchases (including purchases of inventory, Intellectual Property, supplies and materials), the lease of any asset and the licensing of any Intellectual Property, in each case, in the ordinary course of business; (c) the Parent Borrower and its Restricted Subsidiaries may acquire and hold receivables and similar items owing to them in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; (d) any Permitted Creditor Investment; (e) loans, advances and other extensions of credit to officers, directors and employees of the Parent Borrower or the Restricted Subsidiaries (i) for reasonable and customary business-related travel expenses, moving expenses, costs of replacement homes, business machines or supplies, automobiles and other similar expenses, in each case incurred in the ordinary course of business, (ii) in connection with such Person’s purchase of Capital Stock of the Parent Borrower; provided that the amount of such loans and advances used to acquire such Capital Stock shall be contributed to the Parent Borrower in cash as common equity and (iii) for purposes not described in the foregoing clauses (i) and (ii), in an aggregate principal amount outstanding at any time under clause (iii) not to exceed $2,500,000; (f) Investments existing as of the Closing Date and described on Schedule 7.04 hereto and any modification, replacement, renewal, reinvestment or extension thereof; provided that (i) the amount of any Investment permitted pursuant to this Section 7.04(f) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04 and (ii) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note; (g) any Guaranty Obligations of the Credit Parties or any of their respective Restricted Subsidiaries in favor of the Administrative Agent, each LC Issuer and the Lenders and any other Secured Creditors under any Cash Management Agreement, Designated Hedge Agreements or in respect of any other Obligations, in each case, pursuant to the Loan Documents; (h) Investments of the Parent Borrower and its Restricted Subsidiaries in Hedge Agreements permitted to be entered into pursuant to this Agreement; (i) Investments (i) by the Parent Borrower or any of its Restricted Subsidiaries in any Subsidiary existing as of the Closing Date and any modification, renewal or extension thereof; provided that the amount of any Investment permitted pursuant to this Section 7.04(i) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04, (ii) by any Restricted Subsidiary that is not a Credit Party made in any Credit Party or in any Restricted Subsidiary that is not a Credit Party, (iii) by any Credit Party in any other Credit Party, or (iv) by any Credit Party into any Restricted Subsidiary that is not a Credit Party (valued at the Fair Market Value of such Investments at the time such Investment is made); provided that (A) the aggregate amount of Investments made pursuant to this clause (iv) shall not exceed the greater of (x) $15,000,000 and (y) 4.00% of Consolidated Total Assets (measured as of the date such Investment is made (and after giving Pro Forma Effect thereto)) at any time outstanding and (B) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note and (v) by the Parent Borrower or any of its Restricted Subsidiaries in lieu of Restricted Payments permitted under Section 7.05 (it being understood that such Investments shall be deemed Restricted Payments for the purposes of compliance with Section 7.05); (j) Investments consisting of Indebtedness permitted by Section 7.03; (k) transactions permitted by Section 7.01 (other than clause (c)(i) thereof), Section 7.02 and Section 7.05 (other than clause (j) thereof); (i) Guaranty Obligations incurred by the Parent Borrower or any other Restricted Subsidiary in respect of Indebtedness or other obligations of any Restricted Subsidiary that is permitted to be incurred under this Agreement, (ii) Guaranty Obligations incurred in the ordinary course of business in respect of obligations (other than Total Funded Debt) to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners and (iii) Investments in the ordinary course of business consisting of (I) endorsements for collection or deposit and (II) customary trade arrangements with customers consistent with past practices; (m) (i) Investments by the Parent Borrower or any Restricted Subsidiary, provided that the aggregate amount of all such Investments that are so made pursuant to this clause (m) (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) and outstanding at any time (taking into account the repayment of any loans or advances comprising, or any other returns in respect of, such Investments) shall not exceed an amount equal to the greater of (x) $15,000,000 and (y) 4.00% of Consolidated Total Assets (measured as of the date such Investment is made (and after giving Pro Forma Effect thereto)) and (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, Investments by the Parent Borrower or any Restricted Subsidiary in an amount not to exceed the Available Amount at the time of the making of such Investment; (n) the Parent Borrower may make an Investment or incur a Guaranty Obligation with respect to any Parent Entity that could otherwise be made as a Restricted Payment under Section 7.05, so long as the amount of such loan is deducted from the amount available to be made as a Restricted Payment under the applicable clause of Section 7.05; (o) Guaranty Obligations by the Parent Borrower or any Restricted Subsidiary of leases (other than Capitalized Lease Obligations) or of other obligations incurred in the ordinary course of business that do not constitute Indebtedness, in each case entered into in the ordinary course of business; (p) to the extent constituting Investments, the Transactions; (q) Investments held by any Person acquired by the Parent Borrower or a Restricted Subsidiary after the Closing Date or of any Person merged into the Parent Borrower or merged, amalgamated or consolidated with a Restricted Subsidiary, in each case, in accordance with Section 7.01 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation; (r) the forgiveness or conversion to equity of any Indebtedness owed by the Parent Borrower or any Restricted Subsidiary and permitted by Section 7.03; (s) Subsidiaries of the Parent Borrower may be established or created (but any Investment in such Subsidiary must be made in accordance with the other provisions of Section 7.01 or Section 7.04, as applicable) if the Parent Borrower and such Subsidiary comply with the applicable requirements of Section 6.09 and Section 6.10, if applicable; provided that, in each case, to the extent such new Subsidiary is created solely for the purpose of consummating a transaction pursuant to an Acquisition permitted by Section 7.01 or Investment otherwise permitted under this Section 7.04, and such new Subsidiary at no time holds any assets or liabilities other than any Consideration contributed to it contemporaneously with the closing of such transactions, such new Subsidiary shall not be required to take the actions set forth in Section 6.09 and Section 6.10, as applicable, until the respective acquisition or Investment is consummated (at which time the surviving entity of the respective transaction shall be required to so comply in accordance with the provisions thereof); (t) Investments constituting Permitted Acquisitions to the extent permitted by Section 7.01(l); (u) intercompany Investments in connection with reorganizations and related activities related to tax planning and reorganizations; provided that, after giving effect to any such reorganization and related activities and Investments, the security interest of the Lenders on the Collateral, taken as a whole, is not materially impaired; (v) Investments in any Term Loans in accordance with Section 10.06(h) or Section 2.13(a)(iv); and (w) Investments arising as a result of Sale and Lease-Back Transactions.
Appears in 1 contract
Samples: Credit Agreement (PGT, Inc.)
Investments and Guaranty Obligations. The Parent Borrower will not, nor will the Parent Borrower permit any of its Restricted Subsidiaries to (i) make any Investment or (ii) be or become obligated under any Guaranty Obligations (to the extent constituting Investments), except:
(a) Investments by the Parent Borrower or any of its Restricted Subsidiaries in cash and Cash EquivalentsEquivalents or investments that were Cash Equivalents at the time made;
(b) (i) any endorsement of a check or other medium of payment for deposit or collection, or any similar transaction in the normal course of business and (ii) asset purchases (including purchases of inventory, Intellectual Property, supplies and materials), the lease of any asset and the licensing of any Intellectual Property, in each case, in the ordinary course of business;
(c) the Parent Borrower and its Restricted Subsidiaries may acquire and hold receivables and similar items owing to them in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(d) any Permitted Creditor Investment;
(e) loans, advances and other extensions of credit to officers, directors and employees of the Parent Borrower or the Restricted Subsidiaries (i) for reasonable and customary business-related travel expenses, moving expenses, costs of replacement homes, business machines or supplies, automobiles and other similar expenses, in each case incurred in the ordinary course of business, (ii) in connection with such Person’s purchase of Capital Stock of the Parent Borrower; provided that the amount of such loans and advances used to acquire such Capital Stock shall be contributed to the Parent Borrower in cash as common equity and (iii) for purposes not described in the foregoing clauses (i) and (ii), in an aggregate principal amount outstanding at any time under clause (iii) not to exceed $2,500,00010.0 million;
(f) Investments existing as of the Closing Date and described on Schedule 7.04 hereto and any modification, replacement, renewal, reinvestment or extension thereof; provided that (i) the amount of any Investment permitted pursuant to this Section 7.04(f) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04 and (ii) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note7.04;
(g) any Guaranty Obligations of the Credit Parties or any of their respective Restricted Subsidiaries in favor of the Administrative Agent, each LC Issuer and the Lenders and any other Secured Creditors under any Cash Management Agreement, Designated Hedge Agreements or in respect of any other Obligations, in each case, pursuant to the Loan Documents;
(h) Investments of the Parent Borrower and its Restricted Subsidiaries in Hedge Agreements permitted to be entered into pursuant to this Agreement;
(i) Investments (i) by the Parent Borrower or any of its Restricted Subsidiaries in any Subsidiary existing as of the Closing Date and any modification, renewal or extension thereof; provided that the amount of any Investment permitted pursuant to this Section 7.04(i7.04(i)(i) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04, (ii) by any Restricted Subsidiary that is not a Credit Party made in any Credit Party or in any Restricted Subsidiary that is not a Credit Party, (iii) by any Credit Party in any other Credit Party, or (iv) by any Credit Party into any Restricted Subsidiary that is not a Credit Party (valued at the Fair Market Value of such Investments at the time such Investment is made); provided that (A) the aggregate amount of Investments made pursuant to this clause (iv) shall (A) may be in any amount if a perfected security interest has been granted to the Administrative Agent whether or not required by Section 6.10 of this Agreement in (I) the applicable percentage of the Capital Stock of the Subsidiary in which such Investment was made required by Section 6.10 of this Agreement and (II) any intercompany note evidencing any intercompany Indebtedness owed by such Subsidiary to any Credit Party, or (B) otherwise in an amount not to exceed at any time outstanding the greater of (x) $15,000,000 and (y) 4.003.00% of Consolidated Total Assets and (measured y) $65 million, determined as of the date such Investment is made (and after giving Pro Forma Effect thereto)) at based on the most recent financial statements previously required to be delivered pursuant to Section 6.01, plus an amount equal to any time outstanding and (B) returns of capital or sale proceeds actually received in cash in respect of Investments in any Investment in the form of Indebtedness of any Restricted Subsidiary that is not a Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note and (v) by the Parent Borrower or any of its Restricted Subsidiaries in lieu of Restricted Payments permitted under Section 7.05 (it being understood that such Investments shall be deemed Restricted Payments for the purposes of compliance with Section 7.05);
(j) Investments consisting of Indebtedness permitted by Section 7.03;
(k) transactions permitted by Section 6.17, Section 7.01 (other than clause (c)(ic) thereof), Section 7.02 7.02, and Section 7.05 (other than clause (jb)(ii) thereof);
(i) Guaranty Obligations incurred by the Parent Borrower or any other Restricted Subsidiary in respect of Indebtedness or other obligations of the Parent Borrower or any other Restricted Subsidiary that is permitted to be incurred under this Agreement, (ii) Guaranty Obligations incurred in the ordinary course of business in respect of obligations (other than Total Funded Debt) to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners and (iii) Investments in the ordinary course of business consisting of (I) Article III endorsements for collection or deposit and (II) Article IV customary trade arrangements with customers consistent with past practices;
(m) (i) Investments by the Parent Borrower or any Restricted Subsidiary, provided that the aggregate amount of all such Investments that are so made pursuant to this clause (m) (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) and outstanding at any time (taking into account the repayment of any loans or advances comprising, or any other returns in respect of, such Investments) shall not exceed an amount equal to (i) the greater of (x) $15,000,000 65.0 million and (y) 4.003.0% of Consolidated Total Assets of the Parent Borrower (measured as of the date such Investment is made (and after giving Pro Forma Effect thereto)) and (ii) so long as no Specified Event of Default has occurred and is continuing or would result therefromexists at the time of such Investment, Investments by the Parent Borrower or any Restricted Subsidiary in an amount not to exceed the Available Amount at the time of the making of such Investment;
(n) the Parent Borrower may make an Investment Investments or incur a Guaranty Obligation Obligations with respect to any Parent Entity that could otherwise be made as a Restricted Payment under Section 7.05, so long as the amount of such loan is deducted from the amount available to be made as a Restricted Payment under the applicable clause of Section 7.05;
(o) Guaranty Obligations by the Parent Borrower or any Restricted Subsidiary of leases (other than Capitalized Lease Obligations) or of other obligations incurred in the ordinary course of business that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(p) to the extent constituting Investments, the Transactions;
(q) Investments held by any Person acquired by the Parent Borrower or a Restricted Subsidiary after the Closing Date or of any Person merged into the Parent Borrower or merged, amalgamated or consolidated with a Restricted Subsidiary, in each case, in accordance with Section 7.01 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(r) the forgiveness or conversion to equity of any Indebtedness owed by the Parent Borrower or any Restricted Subsidiary and permitted by Section 7.03;
(s) Subsidiaries of the Parent Borrower may be established or created (but any Investment in such Subsidiary must be made in accordance with the other provisions of Section 7.01 or Section 7.04, as applicable) if the Parent Borrower and such Subsidiary comply with the applicable requirements of Section 6.09 and Section 6.10, if applicable; provided that, in each case, to the extent such new Subsidiary is created solely for the purpose of consummating a transaction pursuant to an Acquisition permitted by Section 7.01 or Investment otherwise permitted under this Section 7.04, and such new Subsidiary at no time holds any assets or liabilities other than any Consideration contributed to it contemporaneously with the closing of such transactions, such new Subsidiary shall not be required to take the actions set forth in Section 6.09 and Section 6.10, as applicable, until the respective acquisition or Investment is consummated (at which time the surviving entity of the respective transaction shall be required to so comply in accordance with the provisions thereof);
(t) Investments constituting Permitted Acquisitions to the extent permitted by Section 7.01(l7.01(k);
(u) intercompany Investments in connection with reorganizations and related activities related to tax planning and reorganizations; provided that, after giving effect to any such reorganization and related activities and Investments, the security interest of the Lenders on the Collateral, taken as a whole, is not materially impaired;
(v) Investments in any Term Loans in accordance with Section 10.06(h11.06(g) or Section 2.13(a)(iv2.15(a)(v); and
(w) Investments arising as a result of Sale and Lease-Back Transactions;
(x) any Investment so long as (i) the Cash Interest Coverage Ratio of the Parent Borrower and its Restricted Subsidiaries calculated on a Pro Forma Basis after giving effect to such Investment and any other transactions occurring in connection therewith shall either (i) be greater than 2.00 to 1.00 or (ii) exceed the Cash Interest Coverage Ratio calculated immediately prior to such Investment and any other transactions occurring in connection therewith;
(y) Investments received substantially contemporaneously in exchange for Capital Stock of Parent Borrower (or any Parent Entity); provided that no Change in Control would result therefrom; and
(z) Investments in joint ventures and Unrestricted Subsidiaries the greater of (x) $65.0 million and (y) 3.0% of Consolidated Total Assets of the Parent Borrower.
Appears in 1 contract
Samples: Credit Agreement (Patheon Holdings Cooperatief U.A.)
Investments and Guaranty Obligations. The Parent Borrower will not, nor will the Parent Borrower permit any of its Restricted Subsidiaries to (i) make any Investment or (ii) be or become obligated under any Guaranty Obligations (to the extent constituting Investments), except:
(a) Investments by the Parent Borrower or any of its Restricted Subsidiaries in cash and Cash Equivalents;
(b) (i) any endorsement of a check or other medium of payment for deposit or collection, or any similar transaction in the normal course of business and (ii) asset purchases (including purchases of inventory, Intellectual Property, supplies and materials), the lease of any asset and the licensing of any Intellectual Property, in each case, in the ordinary course of business;
(c) the Parent Borrower and its Restricted Subsidiaries may acquire and hold receivables and similar items owing to them in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(d) any Permitted Creditor Investment;
(e) loans, advances and other extensions of credit to officers, directors and employees of the Parent Borrower or the Restricted Subsidiaries (i) for reasonable and customary business-business- related travel expenses, moving expenses, costs of replacement homes, business machines or supplies, automobiles and other similar expenses, in each case incurred in the ordinary course of business, (ii) in connection with such Person’s purchase of Capital Stock of the Parent Borrower; provided that the amount of such loans and advances used to acquire such Capital Stock shall be contributed to the Parent Borrower in cash as common equity and (iii) for purposes not described in the foregoing clauses (i) and (ii), in an aggregate principal amount outstanding at any time under clause (iii) not to exceed $2,500,0005.0 million;
(f) Investments existing as of the Closing Date and described on Schedule 7.04 hereto and any modification, replacement, renewal, reinvestment or extension thereof; provided that (i) the amount of any Investment permitted pursuant to this Section 7.04(f) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04 and (ii) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note7.04;
(g) any Guaranty Obligations of the Credit Parties or any of their respective Restricted Subsidiaries in favor of the Administrative Agent, each LC Issuer and the Lenders and any other Secured Creditors under any Cash Management Agreement, Designated Hedge Agreements or in respect of any other Obligations, in each case, pursuant to the Loan Documents;
(h) Investments of the Parent Borrower and its Restricted Subsidiaries in Hedge Agreements permitted to be entered into pursuant to this Agreement;; Table of Contents
(i) Investments (i) by the Parent Borrower or any of its Restricted Subsidiaries in any Subsidiary existing as of the Closing Date and any modification, renewal or extension thereof; provided that the amount of any Investment permitted pursuant to this Section 7.04(i7.04(i)(i) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04, (ii) by any Restricted Subsidiary that is not a Credit Party made in any Credit Party or in any Restricted Subsidiary that is not a Credit Party, (iii) by any Credit Party in any other Credit Party, or (iv) by any Credit Party into any Restricted Subsidiary that is not a Credit Party (valued at the Fair Market Value of such Investments at the time such Investment is made); provided that (A) the aggregate amount of Investments made pursuant to this clause (iv) shall not exceed the greater of (x) $15,000,000 and (y) 4.00% of Consolidated Total Assets (measured as of the date such Investment is made (and after giving Pro Forma Effect thereto)) at any time outstanding and (B) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note $15.0 million and (v) by the Parent Borrower or any of its Restricted Subsidiaries in lieu of Restricted Payments permitted under Section 7.05 (it being understood that such Investments shall be deemed Restricted Payments for the purposes of compliance with Section 7.05);
(j) Investments consisting of Indebtedness permitted by Section 7.03;
(k) transactions permitted by Section 7.01 (other than clause (c)(ic) thereof), Section 7.02 and 7.02, Section 7.05 (other than clause (jb)(ii) thereof)) and Section 7.08;
(l) (i) Guaranty Obligations incurred by the Parent Borrower or any other Restricted Subsidiary in respect of Indebtedness or other obligations of the Parent Borrower or any other Restricted Subsidiary that is permitted to be incurred under this Agreement, (ii) Guaranty Obligations incurred in the ordinary course of business in respect of obligations (other than Total Funded Debt) to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners and (iii) Investments in the ordinary course of business consisting of (I) endorsements for collection or deposit and (II) customary trade arrangements with customers consistent with past practices;
(m) (i) Investments by the Parent Borrower or any Restricted SubsidiarySubsidiary of the Parent Borrower, provided that the aggregate amount of all such Investments that are so made pursuant to this clause (m) (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) and outstanding at any time (taking into account the repayment of any loans or advances comprising, or any other returns in respect of, such Investments) shall not exceed an amount equal to the greater of (x) $15,000,000 and (y) 4.00% of Consolidated Total Assets (measured as of the date such Investment is made (and after giving Pro Forma Effect thereto)) 25.0 million and (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, Investments by the Parent Borrower or any Restricted Subsidiary in an amount not to exceed the Available Amount at the time of the making of such Investment;
(n) the Parent Borrower may make an Investment or incur a Guaranty Obligation with respect to any Parent Entity that could otherwise be made as a Restricted Payment under Section 7.05, so long as the amount of such loan is deducted from the amount available to be made as a Restricted Payment under the applicable clause of Section 7.05;
(o) Guaranty Obligations by the Parent Borrower or any Restricted Subsidiary of leases (other than Capitalized Lease Obligations) or of other obligations incurred in the ordinary course of business that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(p) to the extent constituting Investments, the Transactions;; Table of Contents
(q) Investments held by any Person acquired by the Parent Borrower or a Restricted Subsidiary after the Closing Date or of any Person merged into the Parent Borrower or merged, amalgamated or consolidated with a Restricted Subsidiary, in each case, in accordance with Section 7.01 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(r) the forgiveness or conversion to equity of any Indebtedness owed by the Parent Borrower or any Restricted Subsidiary and permitted by Section 7.03;
(s) Subsidiaries of the Parent Borrower may be established or created (but any Investment in such Subsidiary must be made in accordance with the other provisions of Section 7.01 or Section 7.04, as applicable) if the Parent Borrower and such Subsidiary comply with the applicable requirements of Section 6.09 and Section 6.10, if applicable; provided that, in each case, to the extent such new Subsidiary is created solely for the purpose of consummating a transaction pursuant to an Acquisition permitted by Section 7.01 or Investment otherwise permitted under this Section 7.04, and such new Subsidiary at no time holds any assets or liabilities other than any Consideration contributed to it contemporaneously with the closing of such transactions, such new Subsidiary shall not be required to take the actions set forth in Section 6.09 and Section 6.10, as applicable, until the respective acquisition or Investment is consummated (at which time the surviving entity of the respective transaction shall be required to so comply in accordance with the provisions thereof);
(t) Investments constituting Permitted Acquisitions to the extent permitted by Section 7.01(l);
(u) intercompany Investments in connection with reorganizations and related activities related to tax planning and reorganizations; provided that, after giving effect to any such reorganization and related activities and Investmentsactivities, the security interest of the Lenders on the Collateral, taken as a whole, is not materially impaired;
(v) Investments in any Term Loans in accordance with Section 10.06(hSections 11.06(g) or Section 2.13(a)(iv2.15(a)(v); and;
(w) Investments arising as a result of Permitted Sale and Lease-Back Transactions;
(x) Investments consisting of Sellers’ Retained Interests in Securitizations permitted by this Agreement;
(y) the Parent Borrower and its Subsidiaries may make Investments in Securitization SPEs and Non-Recourse SPEs in connection with Securitizations and Non-Recourse Indebtedness and SRI Indebtedness financings and profit-sharing or similar arrangements related thereto permitted pursuant to this Agreement; and
(z) Investments in the ordinary course of business in property of the types consistent with the lines of business permitted under Section 6.13.
Appears in 1 contract
Investments and Guaranty Obligations. The Parent Borrower will not, nor and will the Parent Borrower not permit any of its Restricted Subsidiaries to to, directly or indirectly, (i) make or commit to make any Investment or (ii) be or become obligated under any Guaranty Obligations (to the extent constituting Investments)Obligations, except:
(a) Investments by the Parent Borrower or any of its Restricted Subsidiaries in cash and Cash Equivalents;
(b) (i) any endorsement of a check or other medium of payment for deposit or collection, or any similar transaction in the normal course of business and (ii) asset purchases (including purchases of inventory, Intellectual Property, supplies and materials), the lease of any asset and the licensing of any Intellectual Property, in each case, in the ordinary course of business;
(c) the Parent Borrower and its Restricted Subsidiaries may acquire and hold receivables and similar items owing to them in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(d) any Permitted Creditor Investment;
(e) loans, loans and advances and other extensions of credit to officers, directors and employees of the Parent Borrower or the Restricted Subsidiaries (i) for reasonable and customary business-related travel expenses, moving expenses, costs of replacement homes, business machines or supplies, automobiles and other similar expenses, in each case incurred in the ordinary course of business, (ii) in connection with such Person’s purchase of Capital Stock of the Parent Borrower; provided that the amount of such loans and advances used to acquire such Capital Stock shall be contributed to the Parent Borrower in cash as common equity and (iii) for purposes not described in the foregoing clauses (i) and (ii), in an aggregate principal amount outstanding at any time under clause (iii) not to exceed $2,500,000;
(f) to the extent not permitted by any of the other subparts in this Section, Investments existing as of the Closing Date and described on Schedule 7.04 7.05 hereto and any modificationrenewals, replacement, renewal, reinvestment refinancings or extension thereof; restructurings thereof provided that (i) the amount of any Investment permitted pursuant to this Section 7.04(f) is not increased from the original amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04 and (ii) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Noteis not increased thereby;
(g) any Guaranty Obligations of the Credit Parties Borrower or any of their respective Restricted Subsidiaries Subsidiary in favor of the Administrative Agent, each LC Issuer and the Lenders and any other Secured Creditors benefited creditors under any Cash Management Agreement, Designated Hedge Agreements or in respect of any other Obligations, in each case, pursuant to the Loan Documents;
(h) Investments of the Parent Borrower and its Restricted Subsidiaries in Hedge Agreements permitted to be entered into pursuant to this Agreement;
(i) Investments (i) by of the Parent Borrower or any of its Restricted Subsidiaries in any Subsidiary existing as of the Closing Date and any modificationrenewal, renewal refinancing or extension thereof; provided that restructuring of any such Investment so long as the aggregate amount of such Investment is not increased beyond the amount of any Investment permitted pursuant to this Section 7.04(i) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04Date, (ii) by of the Borrower in any Restricted Subsidiary that is not a Domestic Credit Party (whether now existing or formed hereafter) made in any Credit Party or in any Restricted Subsidiary that is not a Credit Partyafter the Closing Date, (iii) by of any Domestic Credit Party in any other Domestic Credit PartyParty (other than the Borrower, whether now existing or formed hereafter) made after the Closing Date, or (iv) by any Credit Party into any Restricted constituting Permitted Foreign Subsidiary that is not a Credit Party (valued at the Fair Market Value of such Investments at the time such Investment is made); provided that (A) the aggregate amount of Investments made pursuant to this clause (iv) shall not exceed the greater of (x) $15,000,000 Loans and (y) 4.00% of Consolidated Total Assets (measured as of the date such Investment is made (and after giving Pro Forma Effect thereto)) at any time outstanding and (B) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note and (v) by the Parent Borrower or any of its Restricted Subsidiaries in lieu of Restricted Payments permitted under Section 7.05 (it being understood that such Investments shall be deemed Restricted Payments for the purposes of compliance with Section 7.05)Investments;
(j) Investments consisting of Indebtedness permitted by Section 7.03any Foreign Subsidiary in any other Subsidiary of the Borrower;
(k) transactions intercompany loans and advances permitted by Section 7.01 (other than clause (c)(i) thereof), Section 7.02 and Section 7.05 (other than clause (j) thereof7.04(e);
(il) Guaranty Obligations incurred the Acquisitions permitted by the Parent Borrower or any other Restricted Subsidiary in respect of Indebtedness or other obligations of any Restricted Subsidiary that is permitted to be incurred under this Agreement, (ii) Guaranty Obligations incurred in the ordinary course of business in respect of obligations (other than Total Funded Debt) to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners and (iii) Investments in the ordinary course of business consisting of (I) endorsements for collection or deposit and (II) customary trade arrangements with customers consistent with past practicesSection 7.02;
(m) any Guaranty Obligation incurred by any Domestic Credit Party with respect to Indebtedness of another Domestic Credit Party which Indebtedness is permitted by Section 7.04; and
(in) Investments by the Parent Borrower or any Restricted SubsidiaryPermitted Other Investments, provided that the aggregate amount of all such Investments that are so made pursuant to this clause (m) (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) and outstanding at any time (taking into account the repayment of any loans or advances comprising, or any other returns in respect of, such Investments) shall not exceed an amount equal to the greater of (x) $15,000,000 and (y) 4.00% of Consolidated Total Assets (measured as of the date such Investment is made (and after giving Pro Forma Effect thereto)) and (ii) so long as no Default or Event of Default has shall have occurred and is continuing be continuing, or would result therefrom, Investments by the Parent Borrower or any Restricted Subsidiary in an amount not to exceed the Available Amount at the time of the making of such Investment;
(n) the Parent Borrower may make an Investment or incur a Guaranty Obligation with respect to any Parent Entity that could otherwise be made as a Restricted Payment under Section 7.05, so long as the amount of such loan is deducted from the amount available to be made as a Restricted Payment under the applicable clause of Section 7.05;
(o) Guaranty Obligations by the Parent Borrower or any Restricted Subsidiary of leases (other than Capitalized Lease Obligations) or of other obligations incurred in the ordinary course of business that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(p) to the extent constituting Investments, the Transactions;
(q) Investments held by any Person acquired by the Parent Borrower or a Restricted Subsidiary after the Closing Date or of any Person merged into the Parent Borrower or merged, amalgamated or consolidated with a Restricted Subsidiary, in each case, in accordance with Section 7.01 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(r) the forgiveness or conversion to equity of any Indebtedness owed by the Parent Borrower or any Restricted Subsidiary and permitted by Section 7.03;
(s) Subsidiaries of the Parent Borrower may be established or created (but any Investment in such Subsidiary must be made in accordance with the other provisions of Section 7.01 or Section 7.04, as applicable) if the Parent Borrower and such Subsidiary comply with the applicable requirements of Section 6.09 and Section 6.10, if applicable; provided that, in each case, to the extent such new Subsidiary is created solely for the purpose of consummating a transaction pursuant to an Acquisition permitted by Section 7.01 or Investment otherwise permitted under this Section 7.04, and such new Subsidiary at no time holds any assets or liabilities other than any Consideration contributed to it contemporaneously with the closing of such transactions, such new Subsidiary shall not be required to take the actions set forth in Section 6.09 and Section 6.10, as applicable, until the respective acquisition or Investment is consummated (at which time the surviving entity of the respective transaction shall be required to so comply in accordance with the provisions thereof);
(t) Investments constituting Permitted Acquisitions to the extent permitted by Section 7.01(l);
(u) intercompany Investments in connection with reorganizations and related activities related to tax planning and reorganizations; provided that, after giving effect to any such reorganization and related activities and Investments, the security interest of the Lenders on the Collateral, taken as a whole, is not materially impaired;
(v) Investments in any Term Loans in accordance with Section 10.06(h) or Section 2.13(a)(iv); and
(w) Investments arising as a result of Sale and Lease-Back Transactions.
Appears in 1 contract
Investments and Guaranty Obligations. The Parent Borrower Company will not, nor and will the Parent Borrower not permit any of its Restricted Subsidiaries to to, directly or indirectly, (i) make or commit to make any Investment or (ii) be or become obligated under any Guaranty Obligations (to the extent constituting Investments)Obligations, except:
(a) Investments by the Parent Borrower Company or any of its Restricted Subsidiaries in cash and Cash Equivalents;
(b) (i) any endorsement of a check or other medium of payment for deposit or collection, or any similar transaction in the normal course of business and (ii) asset purchases (including purchases of inventory, Intellectual Property, supplies and materials), the lease of any asset and the licensing of any Intellectual Property, in each case, in the ordinary course of business;
(c) the Parent Borrower Company and its Restricted Subsidiaries may acquire and hold receivables and similar items owing to them in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(d) any Permitted Creditor Investment;
(e) loans, loans and advances and other extensions of credit to officers, directors and employees of the Parent Borrower or the Restricted Subsidiaries (i) for reasonable and customary business-related travel expenses, moving expenses, costs of replacement homes, business machines or supplies, automobiles and other similar expenses, in each case incurred in the ordinary course of business, (ii) business or in accordance with the Company’s relocation policy in connection with such Person’s purchase of Capital Stock of the Parent Borrower; World Headquarters Initiative, provided that the aggregate outstanding amount of all such loans and advances used to acquire such Capital Stock shall be contributed to the Parent Borrower in cash as common equity and (iii) for purposes not described in the foregoing clauses (i) and (ii), in an aggregate principal amount outstanding exceed $5,000,000 at any time under clause (iii) not to exceed $2,500,000time;
(f) to the extent not permitted by any of the other subparts in this Section, Investments existing as of the Closing Date and described on Schedule 7.04 hereto and any modification, replacement, renewal, reinvestment or extension thereof; provided that (i) the amount of any Investment permitted pursuant to this Section 7.04(f) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04 and (ii) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note7.05;
(g) any Guaranty Obligations of the Credit Parties Company or any of their respective Restricted Subsidiaries Subsidiary in favor of the Administrative Global Agent, each LC Issuer and the Lenders and any other Secured Benefited Creditors under any Cash Management Agreement, Designated Hedge Agreements or in respect of any other Obligations, in each case, pursuant to the Loan Documents;
(h) Investments the Indebtedness of the Parent Borrower Receivables Subsidiary to the Company or AGSC and its Restricted Subsidiaries Indebtedness of AGSC to the Company in Hedge Agreements permitted to be entered into pursuant to this Agreementconnection with the Permitted Receivables Facility in accordance with the Receivables Facility Documents;
(i) Investments (i) by the Parent Borrower or any of its Restricted Subsidiaries in any Subsidiary existing as Subordinated Indebtedness of the Closing Date and any modification, renewal or extension thereof; provided that the amount of any Investment permitted pursuant Company to this Section 7.04(i) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04, (ii) by any Restricted Subsidiary that is not a Credit Party made in any Credit Party or in any Restricted Subsidiary that is not a Credit Party, (iii) by any Credit Party in any other Credit Party, or (iv) by any Credit Party into any Restricted Subsidiary that is not a Credit Party (valued at the Fair Market Value of such Investments at the time such Investment is made); provided that (A) the aggregate amount of Investments made pursuant to this clause (iv) shall not exceed the greater of (x) $15,000,000 and (y) 4.00% of Consolidated Total Assets (measured as of the date such Investment is made (and after giving Pro Forma Effect thereto)) at any time outstanding and (B) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note and (v) by the Parent Borrower or any of its Restricted Subsidiaries in lieu of Restricted Payments permitted under Section 7.05 (it being understood that such Investments shall be deemed Restricted Payments for the purposes of compliance with Section 7.05);
(j) Investments consisting of Indebtedness permitted by Section 7.03;
(k) transactions permitted by Section 7.01 (other than clause (c)(i) thereof), Section 7.02 and Section 7.05 (other than clause (j) thereof);
(i) Guaranty Obligations incurred by the Parent Borrower or any other Restricted Subsidiary in respect of Indebtedness or other obligations of any Restricted Subsidiary that is permitted to be incurred under this Agreement, (ii) Guaranty Obligations incurred in the ordinary course of business in respect of obligations (other than Total Funded Debt) to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners and (iii) Investments in the ordinary course of business consisting of (I) endorsements for collection or deposit and (II) customary trade arrangements with customers consistent with past practices;
(m) (i) Investments by the Parent Borrower or any Restricted Subsidiary, provided that the aggregate amount of all such Investments that are so made pursuant to this clause (m) (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) and outstanding at any time (taking into account the repayment of any loans or advances comprising, or any other returns in respect of, such Investments) shall not exceed an amount equal to the greater of (x) $15,000,000 and (y) 4.00% of Consolidated Total Assets (measured as of the date such Investment is made (and after giving Pro Forma Effect thereto)) and (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, Investments by the Parent Borrower or any Restricted Subsidiary in an amount not to exceed the Available Amount at the time of the making of such Investment;
(n) the Parent Borrower may make an Investment or incur a Guaranty Obligation with respect to any Parent Entity that could otherwise be made as a Restricted Payment under Section 7.05, so long as the amount of such loan is deducted from the amount available to be made as a Restricted Payment under the applicable clause of Section 7.05;
(o) Guaranty Obligations by the Parent Borrower or any Restricted Subsidiary of leases (other than Capitalized Lease Obligations) or of other obligations incurred in the ordinary course of business that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(p) to the extent constituting Investments, the Transactions;
(q) Investments held by any Person acquired by the Parent Borrower or a Restricted Subsidiary after the Closing Date or of any Person merged into the Parent Borrower or merged, amalgamated or consolidated with a Restricted Subsidiary, in each case, in accordance with Section 7.01 after the Closing Date to the extent that such Investments were not made in contemplation of or AGSC in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(r) the forgiveness or conversion to equity of any Indebtedness owed by the Parent Borrower or any Restricted Subsidiary and permitted by Section 7.03;
(s) Subsidiaries of the Parent Borrower may be established or created (but any Investment in such Subsidiary must be made Permitted Receivables Facility in accordance with the other provisions of Section 7.01 or Section 7.04, as applicable) if the Parent Borrower and such Subsidiary comply with the applicable requirements of Section 6.09 and Section 6.10, if applicable; provided that, in each case, to the extent such new Subsidiary is created solely for the purpose of consummating a transaction pursuant to an Acquisition permitted by Section 7.01 or Investment otherwise permitted under this Section 7.04, and such new Subsidiary at no time holds any assets or liabilities other than any Consideration contributed to it contemporaneously with the closing of such transactions, such new Subsidiary shall not be required to take the actions set forth in Section 6.09 and Section 6.10, as applicable, until the respective acquisition or Investment is consummated (at which time the surviving entity of the respective transaction shall be required to so comply in accordance with the provisions thereof)Receivables Facility Documents;
(t) Investments constituting Permitted Acquisitions to the extent permitted by Section 7.01(l);
(u) intercompany Investments in connection with reorganizations and related activities related to tax planning and reorganizations; provided that, after giving effect to any such reorganization and related activities and Investments, the security interest of the Lenders on the Collateral, taken as a whole, is not materially impaired;
(v) Investments in any Term Loans in accordance with Section 10.06(h) or Section 2.13(a)(iv); and
(w) Investments arising as a result of Sale and Lease-Back Transactions.
Appears in 1 contract
Investments and Guaranty Obligations. The Parent Borrower will notNo Credit Party will, nor will the Parent Borrower any Credit Party permit any of its Restricted Subsidiaries to to, directly or indirectly, (i) make or commit to make any Investment or (ii) be or become obligated under any Guaranty Obligations (to the extent constituting Investments)Obligations, except:
(a) Investments by the Parent Borrower or any of its Restricted Subsidiaries in cash and Cash Equivalents;
(b) (i) any endorsement of a check or other medium of payment for deposit or collection, or any similar transaction in the normal course of business and (ii) asset purchases (including purchases of inventory, Intellectual Property, supplies and materials), the lease of any asset and the licensing of any Intellectual Property, in each case, in the ordinary course of business;
(c) the Parent Borrower and its Restricted Subsidiaries may acquire and hold receivables and similar items owing to them in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(d) any Permitted Creditor Investment;
(e) loans, loans and advances and other extensions of credit to officers, directors and employees of the Parent Borrower or the Restricted Subsidiaries (i) for reasonable and customary business-related travel expenses, moving expenses, costs of replacement homes, business machines or supplies, automobiles and other similar expenses, in each case incurred in the ordinary course of business, (ii) in connection with such Person’s purchase of Capital Stock of provided the Parent Borrower; provided that the aggregate outstanding amount of all such loans and advances used to acquire such Capital Stock shall be contributed to the Parent Borrower in cash as common equity and (iii) for purposes not described in the foregoing clauses (i) and (ii), in an aggregate principal amount outstanding exceed $1,000,000 at any time under clause (iii) not to exceed $2,500,000time;
(f) Investments existing as of the Closing Date and described on Schedule 7.04 hereto and any modification, replacement, renewal, reinvestment or extension thereof; provided that (i) the amount of any Investment permitted pursuant to this Section 7.04(f) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04 and (ii) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note7.05 hereto;
(g) any Guaranty Obligations of the Credit Parties or any of their respective Restricted Subsidiaries in favor of the Administrative Agent, each LC Issuer and the Lenders and any other Secured Creditors benefited creditors under any Cash Management Agreement, Designated Hedge Agreements or in with respect of any other Obligations, in each case, to Designated Bank Services Obligations pursuant to the Loan Documents;
(h) Investments of the Parent Borrower and its Restricted Subsidiaries in Hedge Agreements permitted to be entered into pursuant to this Agreement;
(i) Investments (i) by of the Parent Borrower or any of its Restricted Subsidiaries Subsidiary in any other Subsidiaries; provided that, loans and investments by a Credit Party to or in a Non-Credit Party made on or after the Closing Date (A) shall not exceed at any time, in the aggregate amount of $3,000,000, and (B) such loans and investments are subject to the Intercompany Subordination Agreement;
(j) the Acquisitions permitted by Section 7.02(g);
(k) any Guaranty Obligation incurred by any Credit Party with respect to Indebtedness of another Credit Party that is permitted by Section 7.04;
(l) other Investments by the Borrower or any Subsidiary existing as of the Borrower in any other Person made after the Closing Date and any modification, renewal or extension thereof; provided that the amount of any Investment not otherwise permitted pursuant to this Section 7.04(i7.05, provided that (i) is not increased from at the amount time of making any such Investment on the Closing Date except pursuant to the terms no Default or Event of such Investment as of the Closing Date Default shall have occurred and be continuing, or as otherwise permitted by this Section 7.04would result therefrom, and (ii) by any Restricted Subsidiary that is not a Credit Party made in any Credit Party or in any Restricted Subsidiary that is not a Credit Party, (iii) by any Credit Party in any other Credit Party, or (iv) by any Credit Party into any Restricted Subsidiary that is not a Credit Party (valued at the Fair Market Value of such Investments at the time such Investment is made); provided that (A) the aggregate amount of Investments made pursuant to this clause (iv) shall not exceed the greater of (x) $15,000,000 and (y) 4.00% of Consolidated Total Assets (measured as of the date such Investment is made (and after giving Pro Forma Effect thereto)) at any time outstanding and (B) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note and (v) by the Parent Borrower or any of its Restricted Subsidiaries in lieu of Restricted Payments permitted under Section 7.05 (it being understood that such Investments shall be deemed Restricted Payments for the purposes of compliance with Section 7.05);
(j) Investments consisting of Indebtedness permitted by Section 7.03;
(k) transactions permitted by Section 7.01 (other than clause (c)(i) thereof), Section 7.02 and Section 7.05 (other than clause (j) thereof);
(i) Guaranty Obligations incurred by the Parent Borrower or any other Restricted Subsidiary in respect of Indebtedness or other obligations of any Restricted Subsidiary that is permitted to be incurred under this Agreement, (ii) Guaranty Obligations incurred in the ordinary course of business in respect of obligations (other than Total Funded Debt) to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners and (iii) Investments in the ordinary course of business consisting of (I) endorsements for collection or deposit and (II) customary trade arrangements with customers consistent with past practices;
(m) (i) Investments by the Parent Borrower or any Restricted Subsidiary, provided that the aggregate maximum cumulative amount of all such Investments that are so made pursuant to this clause (m) (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) subpart and outstanding at any time (shall not exceed an aggregate amount of $3,000,000, taking into account the repayment of any loans or advances comprising, or any other returns in respect of, comprising such Investments) shall not exceed an amount equal to the greater of (x) $15,000,000 and (y) 4.00% of Consolidated Total Assets (measured as of the date such Investment is made (and after giving Pro Forma Effect thereto)) and (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, Investments by the Parent Borrower or any Restricted Subsidiary in an amount not to exceed the Available Amount at the time of the making of such Investment;
(nm) Investments constituting deposits made in connection with the Parent Borrower may make an Investment purchase of goods or incur a Guaranty Obligation with respect to any Parent Entity that could otherwise be made as a Restricted Payment under Section 7.05, so long as the amount of such loan is deducted from the amount available to be made as a Restricted Payment under the applicable clause of Section 7.05;
(o) Guaranty Obligations by the Parent Borrower or any Restricted Subsidiary of leases (other than Capitalized Lease Obligations) or of other obligations incurred in the ordinary course of business that do not constitute Indebtedness, in each case entered into services in the ordinary course of business;
(n) promissory notes and other non-cash consideration received in connection with Asset Sale permitted by Section 7.02;
(o) Investments in the ordinary course of business, consisting of (i) endorsements for collection or deposit, (ii) customary trade arrangements with customers, (iii) customary trade arrangements with vendors and suppliers in an aggregate outstanding amount not in excess of $3,000,000, (iv) advances of payroll payments to employees or other advances of salaries or compensation (including advances against commissions) to employees and sales representatives and (v) Investments maintained in connection with any Credit Party’s deferred compensation plan;
(p) to the extent constituting Investments, the Transactions[reserved];
(q) Investments held by any a Person that is acquired by the Parent Borrower or and becomes a Restricted Subsidiary after the Closing Date or of any Person merged into the Parent Borrower or merged, amalgamated or consolidated with a Restricted Subsidiary, in each case, and in accordance with this Section 7.01 after the Closing Date 7.05 and/or Section 7.02, as applicable, to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation consolidation, and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(r) so long as (x) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (y) the forgiveness or conversion to equity of any Indebtedness owed by Borrower is in pro forma covenant compliance with the Parent Borrower or any Restricted Subsidiary and financial covenants set forth in Section 7.07 (it being understood that the Consolidated Net Leverage Ratio permitted at the time by Section 7.037.07(a)(ii) shall be deemed to be 0.50x less than the ratio actually provided for in Section 7.07(a)(ii) at such time), and (z) immediately after giving effect to such Investment, the Credit Parties’ unrestricted cash and Cash Equivalents shall be no less than $10,000,000, Investments made with the portion, if any, of the Available Amount on the date that the Borrower elects to apply all or a portion thereof to this Section 7.05(r);
(s) Subsidiaries of the Parent Borrower may be established or created (but any Investment in such Subsidiary must be made in accordance with the other provisions of Section 7.01 or Section 7.04, as applicable) if the Parent Borrower and such Subsidiary comply with the applicable requirements of Section 6.09 and Section 6.10, if applicable; provided that, in each case, Investments to the extent that payment for such new Subsidiary Investments is created solely for made by the purpose issuance of consummating a transaction pursuant to an Acquisition permitted by Section 7.01 or Investment otherwise permitted under this Section 7.04, and such new Subsidiary at no time holds any assets or liabilities Equity Interests (other than any Consideration contributed to it contemporaneously with the closing Disqualified Equity Interests) of such transactions, such new Subsidiary shall not be required to take the actions set forth in Section 6.09 and Section 6.10, as applicable, until the respective acquisition or Investment is consummated (at which time the surviving entity of the respective transaction shall be required to so comply in accordance with the provisions thereof);Holdings; and
(t) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, other Investments constituting Permitted Acquisitions to the extent permitted by Section 7.01(l);
(u) intercompany Investments in connection with reorganizations and related activities related to tax planning and reorganizations; provided that, if immediately after giving effect to any such reorganization and related activities and Investmentsthereto, the security interest Consolidated Net Leverage Ratio, on a pro forma basis, as of the Lenders most recent date on which a Compliance Certificate was delivered pursuant to Section 6.01(c) (or, prior to the first delivery thereof, compliance to be determined on the Collateralbasis of the most recent financial statements delivered prior to the Closing Date), taken as a whole, is not materially impaired;
(v) Investments in any Term Loans in accordance with Section 10.06(h) or Section 2.13(a)(iv); and
(w) Investments arising as a result of Sale and Lease-Back Transactionsshall be less than 1.00 to 1.00.
Appears in 1 contract
Investments and Guaranty Obligations. The Parent Borrower Company will not, nor and will the Parent Borrower not permit any of its Restricted Subsidiaries to to, directly or indirectly, (i) make or commit to make any Investment or (ii) be or become obligated under any Guaranty Obligations (to the extent constituting Investments)Obligations, except:
(a) Investments by the Parent Borrower Company or any of its Restricted Subsidiaries in cash and Cash Equivalents;
(b) (i) any endorsement of a check or other medium of payment for deposit or collection, or any similar transaction in the normal course of business and (ii) asset purchases (including purchases of inventory, Intellectual Property, supplies and materials), the lease of any asset and the licensing of any Intellectual Property, in each case, in the ordinary course of business;
(c) the Parent Borrower Company and its Restricted Subsidiaries may acquire and hold receivables and similar items owing to them in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(d) any Permitted Creditor Investment;
(e) loans, advances and other extensions of credit to officers, directors and employees of the Parent Borrower or the Restricted Subsidiaries (i) loans and advances to employees for reasonable and customary business-related travel expenses, moving expenses, costs of replacement homes, business machines or supplies, automobiles and other similar expenses, in each case incurred in the ordinary course of businessbusiness or in accordance with the Company’s relocation policy in connection with the World Headquarters Initiative, provided the aggregate outstanding amount of all such loans and advances shall not exceed $5,000,000 at any time, (ii) Investments by the Company in connection with such Person’s purchase of Capital Stock any bonds that may be issued as a portion of the Parent Borrower; provided that financing of the amount of such loans and advances used to acquire such Capital Stock shall be contributed to the Parent Borrower in cash World Headquarters Initiative as common equity permitted under this Agreement, and (iii) for purposes not described Investments of the Company or any of its Subsidiaries in any Subsidiary formed or acquired in connection with the foregoing clauses (i) and (ii)World Headquarters Initiative or the financing thereof, in an aggregate principal amount outstanding at any time as permitted under clause (iii) not to exceed $2,500,000this Agreement;
(f) to the extent not permitted by any of the other subparts in this Section, Investments existing as of the Closing Date and described on Schedule 7.04 hereto and any modification, replacement, renewal, reinvestment or extension thereof; provided that (i) the amount of any Investment permitted pursuant to this Section 7.04(f) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04 and (ii) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note7.05;
(g) any Guaranty Obligations of the Credit Parties Company or any of their respective Restricted Subsidiaries Subsidiary in favor of the Administrative Global Agent, each LC Issuer and the Lenders and any other Secured Benefited Creditors under any Cash Management Agreement, Designated Hedge Agreements or in respect of any other Obligations, in each case, pursuant to the Loan Documents;
(h) the Indebtedness of the Receivables Subsidiary to the Company or AGSC and Indebtedness of AGSC to the Company in connection with the Permitted Receivables Facility in accordance with the Receivables Facility Documents;
(i) Subordinated Indebtedness of the Company to AGSC in connection with the Permitted Receivables Facility in accordance with the Receivables Facility Documents;
(j) Investments of the Parent Borrower Company and its Restricted Subsidiaries in Hedge Agreements permitted to be to entered into pursuant to this Agreement;
(ik) Investments (i) by of the Parent Borrower Company or any of its Restricted Subsidiaries in any Subsidiary existing as of the Closing Date and any modification, renewal or extension thereof; provided that the amount of any Investment permitted pursuant to this Section 7.04(i) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04Date, (ii) by any Restricted Subsidiary that is not a Credit Party made of the Company in any Credit Party or in any Restricted Subsidiary that is not a Domestic Credit Party, (iii) by of any Domestic Credit Party in any other Domestic Credit PartyParty (other than the Company), or (iv) by of any Credit Party into any Restricted Domestic Subsidiary that is not a Domestic Credit Party in any other Domestic Subsidiary (valued at other than the Fair Market Value Company), or (v) constituting Permitted Foreign Subsidiary Loans and Investments;
(l) Investments (i) of such Investments at any Foreign Subsidiary in any other Subsidiary of the time such Investment is made); provided that (A) the aggregate amount of Investments made pursuant to this clause (iv) shall not exceed the greater of (x) $15,000,000 and (y) 4.00% of Consolidated Total Assets (measured Company existing as of the date such Investment is made (and after giving Pro Forma Effect thereto)) at any time outstanding and (B) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note and (v) by the Parent Borrower or any of its Restricted Subsidiaries in lieu of Restricted Payments permitted under Section 7.05 (it being understood that such Investments shall be deemed Restricted Payments for the purposes of compliance with Section 7.05);
(j) Investments consisting of Indebtedness permitted by Section 7.03;
(k) transactions permitted by Section 7.01 (other than clause (c)(i) thereof), Section 7.02 and Section 7.05 (other than clause (j) thereof);
(i) Guaranty Obligations incurred by the Parent Borrower or any other Restricted Subsidiary in respect of Indebtedness or other obligations of any Restricted Subsidiary that is permitted to be incurred under this AgreementClosing Date, (ii) Guaranty Obligations incurred in the ordinary course of business in respect of obligations any Foreign Subsidiary (other than Total Funded Debta Foreign Credit Party) to suppliersin any other Subsidiary of the Company (other than the Receivables Subsidiary), customers, franchisees, lessors, licensees, sublicensees or distribution partners and (iii) Investments of any Foreign Credit Party in any Domestic Credit Party (other than the ordinary course of business consisting of (I) endorsements for collection or deposit and (II) customary trade arrangements with customers consistent with past practicesCompany);
(m) intercompany loans and advances permitted by Section 7.04(h);
(n) the Acquisitions permitted by Section 7.02;
(o) Investments constituting Restricted Payments permitted by Section 7.06;
(p) any Guaranty Obligation incurred by any Domestic Credit Party with respect to Indebtedness of another Domestic Credit Party which Indebtedness is permitted by Section 7.04;
(q) other Investments by the Company or any Subsidiary of the Company (other than the Receivables Subsidiary) in any other Person made after the Closing Date and not permitted pursuant to the foregoing subparts, provided that (i) Investments by at the Parent Borrower time of making any such Investment no Default or any Restricted SubsidiaryEvent of Default shall have occurred and be continuing, provided that or would result therefrom, and (ii) the aggregate maximum cumulative amount of all such Investments that are so made pursuant to this clause (m) (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) subpart and outstanding at any time (shall not exceed an aggregate of $150,000,000, taking into account the repayment of any loans or advances comprising, or any other returns in respect of, comprising such Investments) shall not exceed an amount equal to the greater of (x) $15,000,000 and (y) 4.00% of Consolidated Total Assets (measured as of the date such Investment is made (and after giving Pro Forma Effect thereto)) and (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, Investments by the Parent Borrower or any Restricted Subsidiary in an amount not to exceed the Available Amount at the time of the making of such Investment;
(n) the Parent Borrower may make an Investment or incur a Guaranty Obligation with respect to any Parent Entity that could otherwise be made as a Restricted Payment under Section 7.05, so long as the amount of such loan is deducted from the amount available to be made as a Restricted Payment under the applicable clause of Section 7.05;
(o) Guaranty Obligations by the Parent Borrower or any Restricted Subsidiary of leases (other than Capitalized Lease Obligations) or of other obligations incurred in the ordinary course of business that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(p) to the extent constituting Investments, the Transactions;
(q) Investments held by any Person acquired by the Parent Borrower or a Restricted Subsidiary after the Closing Date or of any Person merged into the Parent Borrower or merged, amalgamated or consolidated with a Restricted Subsidiary, in each case, in accordance with Section 7.01 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(r) the forgiveness or conversion non-cash portion of consideration received in connection with transactions permitted pursuant to equity of any Indebtedness owed by the Parent Borrower or any Restricted Subsidiary and permitted by Section 7.037.02(f);
(s) Subsidiaries of the Parent Borrower may be established or created Guaranty Obligations constituting Indebtedness that is permitted under Section 7.04 (but any Investment in such Subsidiary must be made in accordance with the other provisions of Section 7.01 or Section 7.04, as applicable) if the Parent Borrower and such Subsidiary comply with the applicable requirements of Section 6.09 and Section 6.10, if applicable; provided that, in each case, to the extent such new Subsidiary is created solely for the purpose of consummating a transaction than pursuant to an Acquisition permitted by Section 7.01 or Investment otherwise permitted under this Section 7.04, and such new Subsidiary at no time holds any assets or liabilities other than any Consideration contributed to it contemporaneously with the closing of such transactions, such new Subsidiary shall not be required to take the actions set forth in Section 6.09 and Section 6.10, as applicable, until the respective acquisition or Investment is consummated clause (at which time the surviving entity of the respective transaction shall be required to so comply in accordance with the provisions j) thereof);; and
(t) Investments constituting Permitted Acquisitions to the extent permitted by Section 7.01(l);
(u) intercompany Investments in connection with reorganizations and related activities related to tax planning and reorganizations; provided thatthe restructuring or expansion of the Company’s Chinese operations consisting of (i) the creation of a new or restructured corporate entity under the laws of China (which may take the form of one or more wholly foreign owned entities (WFOE), after giving effect to (ii) the acquisition or ownership of equity or other interests in any such reorganization entities, (iii) contributions to an entity described in clause (i) or (ii) above (whether as debt or equity) in an amount of up to $5,000,000 in each fiscal year, and related activities and Investments, (iv) the security interest of the Lenders on the Collateral, taken as a whole, is not materially impaired;Asset Sales permitted under Section 7.02(i).
(vl) Investments in any Term Loans in accordance with Section 10.06(h) or Section 2.13(a)(iv); and
(w) Investments arising as a result of Sale and Lease-Back Transactions7.09.
Appears in 1 contract
Investments and Guaranty Obligations. The Parent Borrower will not, nor will the Parent Borrower permit any of its Restricted Subsidiaries to (i) make any Investment or (ii) be or become obligated under any Guaranty Obligations (to the extent constituting Investments), except:
(a) Investments by the Parent Borrower or any of its Restricted Subsidiaries in cash and Cash Equivalents;
(b) (i) any endorsement of a check or other medium of payment for deposit or collection, or any similar transaction in the normal course of business and (ii) asset purchases (including purchases of inventory, Intellectual Property, supplies and materials), the lease of any asset and the licensing of any Intellectual Property, in each case, in the ordinary course of business;
(c) the Parent Borrower and its Restricted Subsidiaries may acquire and hold receivables and similar items owing to them in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(d) any Permitted Creditor Investment;
(e) loans, advances and other extensions of credit to officers, directors and employees of the Parent Borrower or the Restricted Subsidiaries (i) for reasonable and customary business-related travel expenses, moving expenses, costs of replacement homes, business machines or supplies, automobiles and other similar expenses, in each case incurred in the ordinary course of business, (ii) in connection with such Person’s purchase of Capital Stock of the Parent Borrower; provided that the amount of such loans and advances used to acquire such Capital Stock shall be contributed to the Parent Borrower in cash as common equity and (iii) for purposes not described in the foregoing clauses (i) and (ii), in an aggregate principal amount outstanding at any time under clause (iii) not to exceed $2,500,0002.5 million;
(f) Investments existing as of the Closing Date and described on Schedule 7.04 hereto and any modification, replacement, renewal, reinvestment or extension thereof; provided that (i) the amount of any Investment permitted pursuant to this Section 7.04(f) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04 and (ii) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note7.04;
(g) any Guaranty Obligations of the Credit Parties or any of their respective Restricted Subsidiaries in favor of the Administrative Agent, each LC Issuer and the Lenders and any other Secured Creditors under any Cash Management Agreement, Designated Hedge Agreements or in respect of any other Obligations, in each case, pursuant to the Loan Documents;
(h) Investments of the Parent Borrower and its Restricted Subsidiaries in Hedge Agreements permitted to be entered into pursuant to this Agreement;
(i) Investments (i) by the Parent Borrower or any of its Restricted Subsidiaries in any Subsidiary existing as of the Closing Date and any modification, renewal or extension thereof; provided that the amount of any Investment permitted pursuant to this Section 7.04(i7.04(i)(i) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04, (ii) by any Restricted Subsidiary that is not a Credit Party made in any Credit Party or in any Restricted Subsidiary that is not a Credit Party, (iii) by any Credit Party in any other Credit Party, or (iv) by any Credit Party into any Restricted Subsidiary that is not a Credit Party (valued at the Fair Market Value of such Investments at the time such Investment is made); provided that (A) the aggregate amount of Investments made pursuant to this clause (iv) shall not exceed the greater of (x) $15,000,000 6.0 million and (y) 4.00% of Consolidated Total Assets (measured as of the date such Investment is made (and after giving Pro Forma Effect thereto)) at any time outstanding and (B) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note and (v) by the Parent Borrower or any of its Restricted Subsidiaries in lieu of Restricted Payments permitted under Section 7.05 (it being understood that such Investments shall be deemed Restricted Payments for the purposes of compliance with Section 7.05);
(j) Investments consisting of Indebtedness permitted by Section 7.03;
(k) transactions permitted by Section 7.01 (other than clause (c)(i) thereof), Section 7.02 and Section 7.05 (other than clause (j) thereof);
(i) Guaranty Obligations incurred by the Parent Borrower or any other Restricted Subsidiary in respect of Indebtedness or other obligations of any Restricted Subsidiary that is permitted to be incurred under this Agreement, (ii) Guaranty Obligations incurred in the ordinary course of business in respect of obligations (other than Total Funded Debt) to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners and (iii) Investments in the ordinary course of business consisting of (I) endorsements for collection or deposit and (II) customary trade arrangements with customers consistent with past practices;
(m) (i) Investments by the Parent Borrower or any Restricted Subsidiary, provided that the aggregate amount of all such Investments that are so made pursuant to this clause (m) (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) and outstanding at any time (taking into account the repayment of any loans or advances comprising, or any other returns in respect of, such Investments) shall not exceed an amount equal to the greater of (x) $15,000,000 6.0 million and (y) 4.00% of Consolidated Total Assets (measured as of the date such Investment is made (and after giving Pro Forma Effect thereto)) and (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, Investments by the Parent Borrower or any Restricted Subsidiary in an amount not to exceed the Available Amount at the time of the making of such Investment;
(n) the Parent Borrower may make an Investment or incur a Guaranty Obligation with respect to any Parent Entity that could otherwise be made as a Restricted Payment under Section 7.05, so long as the amount of such loan is deducted from the amount available to be made as a Restricted Payment under the applicable clause of Section 7.05;
(o) Guaranty Obligations by the Parent Borrower or any Restricted Subsidiary of leases (other than Capitalized Lease Obligations) or of other obligations incurred in the ordinary course of business that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(p) to the extent constituting Investments, the Transactions;
(q) Investments held by any Person acquired by the Parent Borrower or a Restricted Subsidiary after the Closing Date or of any Person merged into the Parent Borrower or merged, amalgamated or consolidated with a Restricted Subsidiary, in each case, in accordance with Section 7.01 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(r) the forgiveness or conversion to equity of any Indebtedness owed by the Parent Borrower or any Restricted Subsidiary and permitted by Section 7.03;
(s) Subsidiaries of the Parent Borrower may be established or created (but any Investment in such Subsidiary must be made in accordance with the other provisions of Section 7.01 or Section 7.04, as applicable) if the Parent Borrower and such Subsidiary comply with the applicable requirements of Section 6.09 and Section 6.10, if applicable; provided that, in each case, to the extent such new Subsidiary is created solely for the purpose of consummating a transaction pursuant to an Acquisition permitted by Section 7.01 or Investment otherwise permitted under this Section 7.04, and such new Subsidiary at no time holds any assets or liabilities other than any Consideration contributed to it contemporaneously with the closing of such transactions, such new Subsidiary shall not be required to take the actions set forth in Section 6.09 and Section 6.10, as applicable, until the respective acquisition or Investment is consummated (at which time the surviving entity of the respective transaction shall be required to so comply in accordance with the provisions thereof);
(t) Investments constituting Permitted Acquisitions to the extent permitted by Section 7.01(l);
(u) intercompany Investments in connection with reorganizations and related activities related to tax planning and reorganizations; provided that, after giving effect to any such reorganization and related activities and Investments, the security interest of the Lenders on the Collateral, taken as a whole, is not materially impaired;
(v) Investments in any Term Loans in accordance with Section 10.06(hSections 11.06(g) or Section 2.13(a)(iv2.15(a)(v); and;
(w) Investments arising as a result of Sale and Lease-Back Transactions; and
(x) to the extent constituting an Investment, the Permitted Share Repurchase may be consummated.
Appears in 1 contract
Samples: Credit Agreement (PGT, Inc.)
Investments and Guaranty Obligations. The Parent Borrower Company will not, nor and will the Parent Borrower not permit any of its Restricted Subsidiaries to to, directly or indirectly, (i) make or commit to make any Investment or (ii) be or become obligated under any Guaranty Obligations (to the extent constituting Investments)Obligations, except:
(a) Investments by the Parent Borrower Company or any of its Restricted Subsidiaries in cash and Cash Equivalents;
(b) (i) any endorsement of a check or other medium of payment for deposit or collection, or any similar transaction in the normal course of business and (ii) asset purchases (including purchases of inventory, Intellectual Property, supplies and materials), the lease of any asset and the licensing of any Intellectual Property, in each case, in the ordinary course of business;
(c) the Parent Borrower Company and its Restricted Subsidiaries may acquire and hold receivables and similar items owing to them in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(d) any Permitted Creditor Investment;
(e) loans, loans and advances and other extensions of credit to officers, directors and employees of the Parent Borrower or the Restricted Subsidiaries (i) for reasonable and customary business-related travel expenses, moving expenses, costs of replacement homes, business machines or supplies, automobiles and other similar expenses, in each case incurred in the ordinary course of business, (ii) in connection with such Person’s purchase of Capital Stock of provided the Parent Borrower; provided that the aggregate outstanding amount of all such loans and advances used to acquire such Capital Stock shall be contributed to the Parent Borrower in cash as common equity and (iii) for purposes not described in the foregoing clauses (i) and (ii), in an aggregate principal amount outstanding exceed $1,000,000 at any time under clause (iii) not to exceed $2,500,000time;
(f) to the extent not permitted by any of the other subparts in this Section, Investments existing as of the Closing Date and described on Schedule 7.04 hereto and any modification, replacement, renewal, reinvestment or extension thereof; provided that (i) the amount of any Investment permitted pursuant to this Section 7.04(f) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04 and (ii) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note7.05;
(g) any Guaranty Obligations of the Credit Parties Company or any of their respective Restricted Subsidiaries Subsidiary in favor of the Administrative Global Agent, each LC Issuer and the Lenders and any other Secured Creditors benefited creditors under any Cash Management Agreement, Designated Hedge Agreements or in respect of any other Obligations, in each case, pursuant to the Loan Documents;
(h) the Indebtedness of the Receivables Subsidiary to the Company or AGSC and Indebtedness of AGSC to the Company in connection with the Permitted Receivables Facility in accordance with the Receivables Facility Documents;
(i) the Indebtedness of the Company to AGSC pursuant to the AGSC Note, provided (i) all of such Indebtedness constitutes Subordinated Indebtedness, and (ii) the aggregate principal amount of such Indebtedness shall not exceed $130,000,000 at any time;
(j) Investments of the Parent Borrower Company and its Restricted Subsidiaries in Hedge Agreements permitted to be to entered into pursuant to this Agreement;
(ik) Investments (i) by of the Parent Borrower Company or any of its Restricted Subsidiaries in any Subsidiary existing as of the Closing Date and any modification, renewal or extension thereof; provided that the amount of any Investment permitted pursuant to this Section 7.04(i) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.04Date, (ii) by any Restricted Subsidiary that is not a Credit Party made of the Company in any Credit Party or in any Restricted Subsidiary that is not a Domestic Credit Party, (iii) by of any Domestic Credit Party in any other Domestic Credit PartyParty (other than the Company), or (iv) by of any Credit Party into any Restricted Domestic Subsidiary that is not a Domestic Credit Party in any other Domestic Subsidiary (valued at other than the Fair Market Value Company), or (v) constituting Permitted Foreign Subsidiary Loans and Investments;
(l) Investments (i) of such Investments at any Foreign Subsidiary in any other Subsidiary of the time such Investment is made); provided that (A) the aggregate amount of Investments made pursuant to this clause (iv) shall not exceed the greater of (x) $15,000,000 and (y) 4.00% of Consolidated Total Assets (measured Company existing as of the date such Investment is made (and after giving Pro Forma Effect thereto)) at any time outstanding and (B) any Investment in the form of Indebtedness of any Credit Party owed to any non-Credit Party shall be on subordination terms no less favorable to the Lenders than the subordination terms set forth in an Intercompany Note and (v) by the Parent Borrower or any of its Restricted Subsidiaries in lieu of Restricted Payments permitted under Section 7.05 (it being understood that such Investments shall be deemed Restricted Payments for the purposes of compliance with Section 7.05);
(j) Investments consisting of Indebtedness permitted by Section 7.03;
(k) transactions permitted by Section 7.01 (other than clause (c)(i) thereof), Section 7.02 and Section 7.05 (other than clause (j) thereof);
(i) Guaranty Obligations incurred by the Parent Borrower or any other Restricted Subsidiary in respect of Indebtedness or other obligations of any Restricted Subsidiary that is permitted to be incurred under this AgreementClosing Date, (ii) Guaranty Obligations incurred in the ordinary course of business in respect of obligations any Foreign Subsidiary (other than Total Funded Debta Foreign Credit Party) to suppliersin any other Subsidiary of the Company (other than the Receivables Subsidiary), customers, franchisees, lessors, licensees, sublicensees or distribution partners and (iii) Investments of any Foreign Credit Party in any Domestic Credit Party (other than the ordinary course of business consisting of (I) endorsements for collection or deposit and (II) customary trade arrangements with customers consistent with past practicesCompany);
(m) intercompany loans and advances permitted by Section 7.04(h);
(n) the Acquisitions permitted by Section 7.02;
(o) Investments constituting Restricted Payments permitted by Section 7.06;
(p) any Guaranty Obligation incurred by any Domestic Credit Party with respect to Indebtedness of another Domestic Credit Party which Indebtedness is permitted by Section 7.04; and
(q) other Investments by the Company or any Subsidiary of the Company (other than the Receivables Subsidiary) in any other Person made after the Closing Date and not permitted pursuant to the foregoing subparts, provided that (i) Investments by at the Parent Borrower time of making any such Investment no Default or any Restricted SubsidiaryEvent of Default shall have occurred and be continuing, provided that or would result therefrom, and (ii) the aggregate maximum cumulative amount of all such Investments that are so made pursuant to this clause (m) (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) subpart and outstanding at any time (shall not exceed an aggregate of $50,000,000, taking into account the repayment of any loans or advances comprising, or any other returns in respect of, comprising such Investments) shall not exceed an amount equal to the greater of (x) $15,000,000 and (y) 4.00% of Consolidated Total Assets (measured as of the date such Investment is made (and after giving Pro Forma Effect thereto)) and (ii) so long as no Event of Default has occurred and is continuing or would result therefrom, Investments by the Parent Borrower or any Restricted Subsidiary in an amount not to exceed the Available Amount at the time of the making of such Investment;
(n) the Parent Borrower may make an Investment or incur a Guaranty Obligation with respect to any Parent Entity that could otherwise be made as a Restricted Payment under Section 7.05, so long as the amount of such loan is deducted from the amount available to be made as a Restricted Payment under the applicable clause of Section 7.05;
(o) Guaranty Obligations by the Parent Borrower or any Restricted Subsidiary of leases (other than Capitalized Lease Obligations) or of other obligations incurred in the ordinary course of business that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(p) to the extent constituting Investments, the Transactions;
(q) Investments held by any Person acquired by the Parent Borrower or a Restricted Subsidiary after the Closing Date or of any Person merged into the Parent Borrower or merged, amalgamated or consolidated with a Restricted Subsidiary, in each case, in accordance with Section 7.01 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(r) the forgiveness or conversion to equity of any Indebtedness owed by the Parent Borrower or any Restricted Subsidiary and permitted by Section 7.03;
(s) Subsidiaries of the Parent Borrower may be established or created (but any Investment in such Subsidiary must be made in accordance with the other provisions of Section 7.01 or Section 7.04, as applicable) if the Parent Borrower and such Subsidiary comply with the applicable requirements of Section 6.09 and Section 6.10, if applicable; provided that, in each case, to the extent such new Subsidiary is created solely for the purpose of consummating a transaction pursuant to an Acquisition permitted by Section 7.01 or Investment otherwise permitted under this Section 7.04, and such new Subsidiary at no time holds any assets or liabilities other than any Consideration contributed to it contemporaneously with the closing of such transactions, such new Subsidiary shall not be required to take the actions set forth in Section 6.09 and Section 6.10, as applicable, until the respective acquisition or Investment is consummated (at which time the surviving entity of the respective transaction shall be required to so comply in accordance with the provisions thereof);
(t) Investments constituting Permitted Acquisitions to the extent permitted by Section 7.01(l);
(u) intercompany Investments in connection with reorganizations and related activities related to tax planning and reorganizations; provided that, after giving effect to any such reorganization and related activities and Investments, the security interest of the Lenders on the Collateral, taken as a whole, is not materially impaired;
(v) Investments in any Term Loans in accordance with Section 10.06(h) or Section 2.13(a)(iv); and
(w) Investments arising as a result of Sale and Lease-Back Transactions.
Appears in 1 contract
