Investments and Restricted Payments. Except as otherwise permitted herein, make any Investments in any Person or any Restricted Payments except: (a) Borrower or any Subsidiary may make Investments in any Guarantor or in the Borrower; (b) Any Subsidiary may make Restricted Payments to Borrower or any Guarantor; (c) Borrower may make Investments in Cash Equivalents; (d) Investments may be made in the ordinary course of business related to employees, such as payments in respect of relocation, travel advances, and loans to employees to exercise stock options, all of which Investments do not exceed in the aggregate at any one time One Million Dollars ($1,000,000); (e) Borrower or any Subsidiary may acquire on a friendly basis at least 51% of each class of capital stock, membership interests or partnership interests, of any fitness center located in the United States, provided that such fitness center shall immediately become a Guarantor and shall comply with Section 3.04 hereof. As used in this Section 7.01(e), "fitness center" means any corporation, limited liability company or partnership whose business is comparable to any of the businesses currently operated by Borrower or any of its Subsidiaries (other than a finance company). Notwithstanding the foregoing, the Borrower and its Subsidiaries may finance all or part of the purchase price of any such fitness center by the issuance of purchase money seller Debt or the assumption of Assumed Debt subject to the following: (i) up to 30% of the purchase price (including the assumption of any existing Debt) of any such acquisition may consist of purchase money seller Debt and Assumed Debt, and such seller Debt and Assumed Debt may be secured as permitted by clause (xiv) of the definition of "Permitted Liens", (ii) any other seller Debt and assumed Debt issued to finance such acquisition shall be unsecured and shall be subordinated to prior payment of the Obligations on terms satisfactory to the Agent and (iii) the Borrower and its Subsidiaries shall not be required to provide a security interest in the assets or pledge the capital stock of such fitness center (but such fitness center shall be required to become a Guarantor) pursuant to Article III or the Credit Documents if such provision of a security interest or such pledge is prohibited by the seller Debt or Assumed Debt referred to in clause (i) (the Borrower agreeing that it shall use reasonable efforts to cause such seller Debt and Assumed Debt to be unsecured and to permit the capital stock and assets of such Subsidiary to be pledged to secure the Obligations); (f) Borrower and its Subsidiaries may make mandatory Investments in Funding Corp., and Funding Corp. may make required Investments in the H&T Master Trust and BTFC, in each case pursuant to and in accordance with the Receivables Program Documents; (g) Borrower and its Subsidiaries may make mandatory Investments in Finance Subsidiaries, and Finance Subsidiaries may make related required Investments, in each case pursuant to a Receivables Financing Transactions and as long as such Investments are substantially comparable to those required by the Receivables Program Documents; (h) Investments by the Borrower and its Subsidiaries in New Ventures, Foreign Subsidiaries, Lincoln Indemnity Company, non-Consolidated Subsidiaries, Unrestricted Subsidiaries and Finance Subsidiaries (i) existing on the Original Closing Date and (ii) made after such date; provided that the aggregate amount of such Investments made after the Original Closing Date (valued at the time of the making thereof, and after taking into account any return after the Original Closing Date from dividends, distributions and repayments in respect of such Investments) does not exceed, at any one time outstanding, $25,000,000 (plus any dividends, distributions and repayments in respect of Investments existing on the Original Closing Date); provided further that with respect to Investments in Finance Subsidiaries, the only amount of such Investment to be considered in determining the $25,000,000 limit set forth above are those amounts in excess of the amounts allowed by paragraph (f) and paragraph (g) of this Section 7.01; provided further that the cumulative outstanding Investment in any Subsidiary on the date that such Subsidiary is converted to an Unrestricted Subsidiary in accordance with the terms hereof shall be deemed an Investment made on such conversion date in an Unrestricted Subsidiary for purposes of determining compliance with this Section 7.01(h); (i) Investments to the extent funded by common stock of the Borrower issued after the Original Closing Date or the proceeds thereof received after the Original Closing Date; and (j) Investments consisting of cash reserves established, in the ordinary course of the Borrower’s and its Subsidiaries’ business and consistent with past practice, pursuant to the Credit Card Program Agreement.
Appears in 1 contract
Samples: Credit Agreement (Bally Total Fitness Holding Corp)
Investments and Restricted Payments. Except as otherwise permitted herein, make any Investments in any Person or any Restricted Payments except:
(a) Borrower or any Subsidiary may make Investments in any Guarantor or in the Borrower;
(b) Any Subsidiary may make Restricted Payments to Borrower or any Guarantor;
(c) Borrower may make Investments in Cash Equivalents;
(d) Investments may be made in the ordinary course of business related to employees, such as payments in respect of relocation, travel advances, and loans to employees to exercise stock options, all of which Investments do not exceed in the aggregate at any one time One Million Dollars ($1,000,000);
(e) Borrower or any Subsidiary may acquire on a friendly basis at least 51% of each class of capital stock, membership interests or partnership interests, of any fitness center located in the United States, provided that such fitness center shall immediately become a Guarantor and shall comply with Section 3.04 hereof. As used in this Section 7.01(e), "“fitness center" ” means any corporation, limited liability company or partnership whose business is comparable to any of the businesses currently operated by Borrower or any of its Subsidiaries (other than a finance company). Notwithstanding the foregoing, the Borrower and its Subsidiaries may finance all or part of the purchase price of any such fitness center by the issuance of purchase money seller Debt or the assumption of Assumed Debt subject to the following: (i) up to 30% of the purchase price (including the assumption of any existing Debt) of any such acquisition may consist of purchase money seller Debt and Assumed Debt, and such seller Debt and Assumed Debt may be secured as permitted by clause (xiv) of the definition of "“Permitted Liens"”, (ii) any other seller Debt and assumed Debt issued to finance such acquisition shall be unsecured and shall be subordinated to prior payment of the Obligations on terms satisfactory to the Agent and (iii) the Borrower and its Subsidiaries shall not be required to provide a security interest in the assets or pledge the capital stock of such fitness center (but such fitness center shall be required to become a Guarantor) pursuant to Article III or the Credit Documents if such provision of a security interest or such pledge is prohibited by the seller Debt or Assumed Debt referred to in clause (i) (the Borrower agreeing that it shall use reasonable efforts to cause such seller Debt and Assumed Debt to be unsecured and to permit the capital stock and assets of such Subsidiary to be pledged to secure the Obligations);
(f) Borrower and its Subsidiaries may make mandatory Investments in Funding Corp., and Funding Corp. may make required Investments in the H&T Master Trust and BTFC, in each case pursuant to and in accordance with the Receivables Program Documents;
(g) Borrower and its Subsidiaries may make mandatory Investments in Finance Subsidiaries, and Finance Subsidiaries may make related required Investments, in each case pursuant to a Receivables Financing Transactions and as long as such Investments are substantially comparable to those required by the Receivables Program Documents;
(h) Investments by the Borrower and its Subsidiaries in New Ventures, Foreign Subsidiaries, Lincoln Indemnity Company, non-Consolidated Subsidiaries, Unrestricted Subsidiaries and Finance Subsidiaries (i) existing on the Original Closing Date and (ii) made after such date; provided that the aggregate amount of such Investments made after the Original Closing Date (valued at the time of the making thereof, and after taking into account any return after the Original Closing Date from dividends, distributions and repayments in respect of such Investments) does not exceed, at any one time outstanding, $25,000,000 (plus any dividends, distributions and repayments in respect of Investments existing on the Original Closing Date); provided further that with respect to Investments in Finance Subsidiaries, the only amount of such Investment to be considered in determining the $25,000,000 limit set forth above are those amounts in excess of the amounts allowed by paragraph (f) and paragraph (g) of this Section 7.01; provided further that the cumulative outstanding Investment in any Subsidiary on the date that such Subsidiary is converted to an Unrestricted Subsidiary in accordance with the terms hereof shall be deemed an Investment made on such conversion date in an Unrestricted Subsidiary for purposes of determining compliance with this Section 7.01(h);
(i) Investments to the extent funded by common stock of the Borrower issued after the Original Closing Date or the proceeds thereof received after the Original Closing Date; and
(j) Investments consisting of cash reserves established, in the ordinary course of the Borrower’s and its Subsidiaries’ business and consistent with past practice, pursuant to the Credit Card Program Agreement.71
Appears in 1 contract
Samples: Credit Agreement (Bally Total Fitness Holding Corp)
Investments and Restricted Payments. Except 14.5.1 Until such time as otherwise permitted hereinFacility B is fully repaid and cancelled, make any Restricted Payment. Until such time as Facility B is fully repaid and cancelled, make any Investment (other than a Permitted Investment), unless after giving effect to such Investment, (i) the ratio of Total Debt to EBITDA calculated on a quarterly basis as set out in subsection 13.11.4 is less than or equal to 3.25:1 for the two previous fiscal quarters and the two subsequent fiscal quarters on a pro forma basis, and (ii) the aggregate amount of all Investments (other than Permitted Investments) made by the Restricted Group up to such date would not exceed 10% of Consolidated Net Worth as of the end of the most recently ended fiscal quarter. The amount of Investments (other than Permitted Investments) as of the Closing Date is deemed to be US$11,176,870, comprised of the Investments described in any Person or any Schedule "R" hereto. Once Facility B is fully repaid and cancelled, the Restricted Payments exceptGroup shall not make:
(a) Borrower or any Subsidiary may make Investment (other than Permitted Investments), if, after giving effect thereto, the aggregate amount of all such Investments in any Guarantor or in made by the Borrower;Restricted Group up to such date would exceed 10% of Consolidated Net Worth as of the end of the most recently ended fiscal quarter; or
(b) Any Subsidiary may make any Restricted Payments in excess of US$5,000,000 per fiscal year of IPG.
14.5.2 In addition to Borrower or and not in limitation of the foregoing restrictions, IPG will not, and will not permit any Guarantor;Restricted Subsidiary to, make any Investment in any Unrestricted Subsidiary not engaged in a business substantially related to the business of the Restricted Group.
14.5.3 Furthermore, LLC shall not make any Investment other than Permitted Investments described in the second, third and fourth paragraphs of the definition thereof and Permitted Investments in IPG (US) Inc. The latter shall not make any Investment other than Permitted Investments described in such paragraphs and Permitted Investments in any Restricted Subsidiary that has executed the required Security Documents.
14.5.4 The following restrictions shall apply in connection with any and all payments to Drumheath by any member of the Restricted Group:
(ca) Borrower may make Investments until such time as Facility B has been repaid in Cash Equivalents;
(d) Investments full and the Credit thereunder cancelled, all payments to Drumheath must be on account of premiums payable for the insurance policies issued by Drumheath. After Facility B has been repaid and the Credit thereunder cancelled, such payments may be made in paid partly as premiums and partly on account of Investments, as determined by the ordinary course of business related to employees, such as payments in respect of relocation, travel advances, and loans to employees to exercise stock options, all of which Investments do not exceed in the aggregate at any one time One Million Dollars ($1,000,000);
(e) Borrower or any Subsidiary may acquire on a friendly basis at least 51% of each class of capital stock, membership interests or partnership interests, of any fitness center located in the United States, provided that such fitness center shall immediately become a Guarantor and shall comply with Section 3.04 hereof. As used in this Section 7.01(e), "fitness center" means any corporation, limited liability company or partnership whose business is comparable to any of the businesses currently operated by Borrower or any of its Subsidiaries (other than a finance company)Restricted Group. Notwithstanding the foregoing, the Borrower sum total of payments to Drumheath may not exceed US$3,000,000 in any fiscal year of IPG;
(b) no Investments in or payments or Restricted Payments to Drumheath may be made while a Default has occurred or is continuing or following the occurrence of an Event of Default which has not been waived;
(c) until Facility B has been repaid in full and its Subsidiaries the Credit thereunder cancelled, Drumheath may finance not enter into any insurance contracts in respect of any other kinds of insurance other than the types of insurance it is currently underwriting, consisting of workers' compensation;
(d) all or part of Drumheath's liability in connection with workers' compensation policies shall be reinsured by reputable reinsurance companies, which reinsurance policies shall remain in effect at all times;
(e) Drumheath may not carry on any new line of business, not currently conducted by Drumheath as of the purchase price Closing Date, during the Term other than, subject to subsection 14.5.4(c), an insurance business, as defined under applicable Law;
(f) prior to the occurrence of any Event of Default which has not been waived, any monies coming from Drumheath including dividends, distributions and related proceeds (other than payment of claims under valid policies of insurance and other expenses to be paid in the ordinary course of business) must be paid directly to a member of the Restricted Group. Following the occurrence of an Event of Default which has not been waived, at the request of the Agent on behalf of the Lenders, the Borrowers and the Guarantors shall cancel all insurance policies contracted with Drumheath in accordance with the terms of any such fitness center policy, other than those in respect of workers' compensation, cause Drumheath to cease carrying on business, and shall cause the net amount of all sums left in Drumheath (following the payment by the issuance Drumheath of, or reservation for, all claims (including those incurred but not reported) in respect of purchase money seller Debt or the assumption of Assumed Debt subject policies outstanding, in accordance with applicable Law) to the following: (i) up be paid to 30% a member of the purchase price (including the assumption of any existing Debt) of any such acquisition may consist of purchase money seller Debt and Assumed Debt, and such seller Debt and Assumed Debt may Restricted Group to be secured as permitted by clause (xiv) of the definition of "Permitted Liens", (ii) any other seller Debt and assumed Debt issued to finance such acquisition shall be unsecured and shall be subordinated to prior payment of the Obligations on terms satisfactory paid to the Agent and (iii) for the Borrower and its Subsidiaries shall not be required Lenders to provide a security interest in the assets or pledge the capital stock of such fitness center (but such fitness center shall be required to become a Guarantor) pursuant to Article III or reduce the Credit Documents if such provision under Facilities B and C, in that order, subject to Pro Rata Sharing; and
(g) each of a security interest or such pledge is prohibited by the seller Debt or Assumed Debt referred Borrowers and the Guarantors confirms that it has not guaranteed any of the liabilities of Drumheath under any of its insurance policies, nor has any of them provided any other guarantee of any liability of Drumheath of any nature whatsoever. Notwithstanding the provisions of subsection 14.5.1, the US$3,000,000 annual Restricted Payments to and/or Investments in Drumheath may be made even where the restrictions set out in clause (i) (of subsection 14.5.1 have not been met. All payments to Drumheath shall be deemed "Investments" for the Borrower agreeing that it purposes of subsection 14.5.1.
14.5.5 In addition to the foregoing restrictions, IPG will not make any Restricted Payments or any Investment if, at the time thereof or after giving effect thereto, any Default shall use reasonable efforts to cause such seller Debt have occurred and Assumed Debt be continuing or Event of Default shall have occurred which has not been waived.
14.5.6 IPG will not declare any dividend which constitutes a Restricted Payment payable more than 60 days after the date of declaration thereof.
14.5.7 For the purposes of this Section 14.5, the amount of any Restricted Payment declared, paid or distributed in property shall be deemed to be unsecured and to permit the capital stock and assets greater of the book value or fair market value (as determined in good faith by the Board of Directors of IPG) of such Subsidiary to be pledged to secure the Obligations);
(f) Borrower and its Subsidiaries may make mandatory Investments in Funding Corp., and Funding Corp. may make required Investments in the H&T Master Trust and BTFC, in each case pursuant to and in accordance with the Receivables Program Documents;
(g) Borrower and its Subsidiaries may make mandatory Investments in Finance Subsidiaries, and Finance Subsidiaries may make related required Investments, in each case pursuant to a Receivables Financing Transactions and as long as such Investments are substantially comparable to those required by the Receivables Program Documents;
(h) Investments by the Borrower and its Subsidiaries in New Ventures, Foreign Subsidiaries, Lincoln Indemnity Company, non-Consolidated Subsidiaries, Unrestricted Subsidiaries and Finance Subsidiaries (i) existing on the Original Closing Date and (ii) made after such date; provided that the aggregate amount of such Investments made after the Original Closing Date (valued property at the time of the making of the Restricted Payment in question.
14.5.8 In valuing any Investments for the purpose of applying the limitations set forth in this Section 14.5, such Investments shall be taken at the original cost thereof, and after taking into without allowance for any subsequent write-offs or appreciation or depreciation therein, but less any amount repaid or recovered on account any return after of capital or principal.
14.5.9 For the Original Closing Date from dividends, distributions and repayments in respect purposes of such Investments) does not exceedthis Section 14.5, at any one time outstandingwhen a Person becomes a Restricted Subsidiary, $25,000,000 (plus any dividends, distributions and repayments in respect of all Investments existing on the Original Closing Date); provided further that with respect to Investments in Finance Subsidiaries, the only amount of such Investment to be considered in determining the $25,000,000 limit set forth above are those amounts in excess of the amounts allowed by paragraph (f) and paragraph (g) of this Section 7.01; provided further that the cumulative outstanding Investment in any Subsidiary on the date that Person at such Subsidiary is converted to an Unrestricted Subsidiary in accordance with the terms hereof time shall be deemed an Investment to have been made on by such conversion date in an Unrestricted Subsidiary for purposes of determining compliance with this Section 7.01(h);
(i) Investments to the extent funded by common stock of the Borrower issued after the Original Closing Date or the proceeds thereof received after the Original Closing Date; and
(j) Investments consisting of cash reserves establishedPerson, in the ordinary course of the Borrower’s and its Subsidiaries’ business and consistent with past practiceas a Restricted Subsidiary, pursuant to the Credit Card Program Agreementat such time.
Appears in 1 contract
Investments and Restricted Payments. Except as otherwise permitted herein, make any Investments in any Person or any Restricted Payments except:
(a) Borrower or any Subsidiary may make Investments in any Guarantor or in the Borrower;
(b) Any Subsidiary may make Restricted Payments to Borrower or any Guarantor;; 73
(c) Borrower may make Investments in Cash Equivalents;
(d) Investments may be made in the ordinary course of business related to employees, such as payments in respect of relocation, travel advances, and loans to employees to exercise stock options, all of which Investments do not exceed in the aggregate at any one time One Million Dollars ($1,000,000)) or Investments made in the ordinary course of business related to leases such as security deposits or similar items;
(e) Borrower or any Subsidiary may acquire on a friendly basis at least 51% of each class of capital stock, membership interests or partnership interests, of any fitness center located in the United States, provided that such fitness center shall immediately become a Guarantor and shall comply with Section 3.04 hereof. As used in this Section 7.01(e), "“fitness center" ” means any corporation, limited liability company or partnership whose business is comparable to any of the businesses currently operated by Borrower or any of its Subsidiaries (other than a finance company). Notwithstanding the foregoing, the Borrower and its Subsidiaries may finance all or part of the purchase price of any such fitness center by the issuance of purchase money seller Debt or the assumption of Assumed Debt subject to the following: (i) up to 30% of the purchase price (including the assumption of any existing Debt) of any such acquisition may consist of purchase money seller Debt and Assumed Debt, and such seller Debt and Assumed Debt may be secured as permitted by clause (xiv) of the definition of "“Permitted Liens"”, (ii) any other seller Debt and assumed Debt issued to finance such acquisition shall be unsecured and shall be subordinated to prior payment of the Obligations on terms satisfactory to the Agent and (iii) the Borrower and its Subsidiaries shall not be required to provide a security interest in the assets or pledge the capital stock of such fitness center (but such fitness center shall be required to become a Guarantor) pursuant to Article III or the Credit Documents if such provision of a security interest or such pledge is prohibited by the seller Debt or Assumed Debt referred to in clause (i) (the Borrower agreeing that it shall use reasonable efforts to cause such seller Debt and Assumed Debt to be unsecured and to permit the capital stock and assets of such Subsidiary to be pledged to secure the Obligations);
(f) Borrower and its Subsidiaries may make mandatory Investments in Funding Corp., and Funding Corp. may make required Investments in the H&T Master Trust and BTFC, in each case pursuant to and in accordance with the Receivables Program Documents;[Reserved]
(g) Borrower and its Subsidiaries may make mandatory Investments in Finance Subsidiaries, and Finance Subsidiaries may make related required Investments, in each case pursuant to a Receivables Financing Transactions and as long as such Investments are substantially comparable to those required by the Receivables Program DocumentsTransactions;
(h) Investments by the Borrower and its Subsidiaries in New Ventures, Foreign Subsidiaries, Lincoln Indemnity Company, non-Consolidated Subsidiaries, Unrestricted Subsidiaries and Finance Subsidiaries (i) existing on the Original Closing Date and (ii) made after such datethe Closing Date; provided that (A) the aggregate amount of such Investments made after the Original Closing Date (valued at the time of the making thereof, and after taking into account any return after the Original Closing Date from dividends, distributions and repayments in respect of such Investments) does not exceed, at any one time outstanding, $25,000,000 15,000,000 (plus any dividends, distributions and repayments in respect of Investments existing on the Original Closing Date); provided further that with respect to Investments in Finance Subsidiaries, (B) the only aggregate amount of such Investment to be considered in determining investments made after the $25,000,000 limit set forth above are those amounts in excess Closing Date (valued at the time of the amounts allowed by paragraph making thereof, and after taking into account any return after the 74 Closing Date from dividends, distributions and repayments in respect of such Investments) does not exceed $5,000,000 in any fiscal year, including the 2004 fiscal year, and (fC) and paragraph (g) of this Section 7.01; provided further that the cumulative outstanding Investment in any Subsidiary on the date that such Subsidiary is converted to an Unrestricted Subsidiary in accordance with the terms hereof shall be deemed an Investment made on such conversion date in an Unrestricted Subsidiary for purposes of determining compliance with this Section 7.01(h);
(i) Investments to the extent funded by common stock of the Borrower issued after the Original Closing Date or the cash proceeds thereof received after the Original Closing Date; andDate (and Investments of such cash proceeds), provided that such proceeds from issuances of common stock may only be utilized for Investments if used within nine months of the issuance of such stock;
(j) Investments consisting of cash reserves established, in the ordinary course of the Borrower’s and its Subsidiaries’ business and consistent with past practice, pursuant to the Credit Card Program Agreement; and
(k) Investments in Real Estate Financing Subsidiaries consisting of After Acquired Owned Property made in connection with Permitted Real Estate Financing Transactions. Notwithstanding the foregoing, Investments made pursuant to the preceding paragraph (h) shall be subject to the following restrictions: (x) Collateral (other than cash) having an aggregate value in excess of $5,000,000 may not be transferred or invested (including in or to an Unrestricted Subsidiary) in any one-year period (except that any portion of such permitted amount not used in any year may be carried forward to subsequent years) and (y) intellectual property may not be so transferred or invested. In addition, the Borrower and its Subsidiaries shall not be permitted to make Investments (including in Unrestricted Subsidiaries) which have the effect of paying, purchasing, redeeming or defeasing the Senior Unsecured Notes or the Subordinated Notes or paying dividends on or purchasing or redeeming Capital Stock of the Borrower (it being understood that the Borrower and its Subsidiaries shall not provide Guarantees or other credit support with respect to Unrestricted Subsidiaries).
Appears in 1 contract
Samples: Credit Agreement (Bally Total Fitness Holding Corp)
Investments and Restricted Payments. Except as otherwise permitted herein, make any Investments in any Person or any Restricted Payments except:
(a) Borrower or any Subsidiary may make Investments in any Guarantor or in the Borrower;
(b) Any Subsidiary may make Restricted Payments to Borrower or any Guarantor;
(c) Borrower may make Investments in cash or Cash Equivalents;
(d) Investments may be made in the ordinary course of business related to employees, such as payments in respect of relocation, entertainment, travel advances, and loans to employees to exercise stock options, all of which Investments do not exceed in the aggregate at any one time One Million Dollars ($1,000,000)) or Investments made in the ordinary course of business related to leases such as security deposits or similar items;
(e) Borrower or any Subsidiary may acquire on a friendly basis at least 51% of each class of capital stockthe Capital Stock, membership interests or partnership interests, of any fitness center located in the United States, provided that such fitness center shall immediately become a Guarantor and shall comply with Section 3.04 hereof. As used in this Section 7.01(e), "“fitness center" ” means any corporation, limited liability company or partnership whose business is comparable to any of the businesses currently operated by Borrower or any of its Subsidiaries (other than a finance company). Notwithstanding the foregoing, the Borrower and its Subsidiaries may finance all or part of the purchase price of any such fitness center by the issuance of purchase money seller Debt or the assumption of Assumed Debt subject to the following: (i) up to 30% of the purchase price (including the assumption of any existing Debt) of any such acquisition may consist of purchase money seller Debt and Assumed Debt, and such seller Debt and Assumed Debt may be secured as permitted by clause (xiv) of the definition of "Permitted Liens", (ii) any other seller Debt and assumed Debt issued to finance such acquisition shall be unsecured and shall be subordinated to prior payment of the Obligations on terms satisfactory to the Agent and (iii) the Borrower and its Subsidiaries shall not be required to provide a security interest in the assets or pledge the capital stock of such fitness center (but such fitness center shall be required to become a Guarantor) pursuant to Article III or the Credit Documents if such provision of a security interest or such pledge is prohibited by the seller Debt or Assumed Debt referred to in clause (i) (the Borrower agreeing that it shall use reasonable efforts to cause such seller Debt and Assumed Debt to be unsecured and to permit the capital stock and assets of such Subsidiary to be pledged to secure the Obligations);
(f) Borrower and its Subsidiaries may make mandatory Investments in Funding Corp., and Funding Corp. may make required Investments in the H&T Master Trust and BTFC, in each case pursuant to and in accordance with the Receivables Program Documents[Reserved];
(g) Borrower and its Subsidiaries may make mandatory Investments in Finance Subsidiaries, and Finance Subsidiaries may make related required Investments, in each case pursuant to a Receivables Financing Transactions and as long as such Investments are substantially comparable to those required by the Receivables Program Documents;
(h) Investments by the Borrower and its Subsidiaries in New Ventures, Joint Ventures, Foreign Subsidiaries, Lincoln Indemnity Company, and non-Consolidated Subsidiaries, and Unrestricted Subsidiaries and Finance Subsidiaries (i) existing on the Original Closing Date and (ii) made after such datethe Closing Date; provided that (A) the aggregate amount of such Investments made after the Original Closing Date (valued at the time of the making thereof, and after taking into account any return after the Original Closing Date from dividends, distributions and repayments in respect of such Investments) does not exceed, at any one time outstanding, $25,000,000 15,000,000 (plus any dividends, distributions and repayments in respect of Investments existing on the Original Closing Date); provided further that with respect to Investments in Finance Subsidiaries, (B) the only aggregate amount of such Investment investments made after the Closing Date (valued at the time of the making thereof, and after taking into account any return after the Closing Date from dividends, distributions and repayments in respect of such Investments) does not exceed $5,000,000 in any fiscal year (except (i) that any portion of such permitted amount not used in any fiscal year may be carried forward to subsequent fiscal years and (ii) for any fiscal year, the amount that would otherwise be permitted to be considered so invested in determining the $25,000,000 limit set forth above are those amounts in excess such fiscal year (including as a result of the amounts allowed carry-forward described in the preceding clause (i)) may be increased by paragraph (fpulling forward to such fiscal year the amount that would be permitted to be so invested in the immediately succeeding fiscal year; provided, however, that the actual amount so pulled forward in respect of any fiscal year shall reduce, on a dollar-for-dollar basis, the amount that would otherwise be permitted to be so invested in the succeeding fiscal year; and provided, further, that the aggregate amount permitted to be so invested may in no event exceed $10,000,000 in any fiscal year) and paragraph (gC) of this Section 7.01; provided further that the cumulative outstanding Investment in any Subsidiary on the date that such Subsidiary is converted to an Unrestricted Subsidiary in accordance with the terms hereof shall be deemed an Investment made on such conversion date in an Unrestricted Subsidiary for purposes of determining compliance with this Section 7.01(h);
(ih) Investments to the extent funded by common stock Capital Stock of the Borrower issued after the Original Closing Date or the cash proceeds thereof received after the Original Closing Date; andDate (and Investments of such cash proceeds), provided that such proceeds from issuances of Capital Stock may only be used for Investments if used within nine months of the issuance of such stock;
(i) [Reserved];
(j) Investments consisting resulting from (i) the write-off of cash reserves establishedintercompany loans in connection with the liquidation or dissolution of any Subsidiary permitted hereunder and (ii) the forgiveness of intercompany loans existing as of the Closing Date set forth on Schedule 7.01(j);
(k) Investments existing as of the Closing Date as set forth on Schedule 7.01(k) and any modification, replacement, renewal or extension thereof provided that the original amount of each such Investment is not increased except as otherwise permitted by this Section 7.01;
(l) Investments resulting from entering into Hedging Arrangements;
(m) Investments received in connection with the bankruptcy or reorganization of any Person or in settlement of obligations of, or disputes with, any Person arising in the ordinary course of the Borrower’s and its Subsidiaries’ business and consistent upon foreclosure with past practicerespect to any secured Investment or other transfer of title with respect to any secured Investment; and
(n) Investments arising out of the receipt by the Borrower or any of its Subsidiaries of promissory notes and non-cash consideration for Permitted Asset Sales, provided that the non-cash consideration for any such asset sale shall not exceed 25% of the total consideration therefore. Notwithstanding the foregoing, Investments made pursuant to the Credit Card Program Agreementpreceding paragraph (g) shall be subject to the following restrictions: (x) Collateral (other than cash and Cash Equivalents) having an aggregate value in excess of $5,000,000 may not be transferred or invested in any one-year period, (y) Investment in Joint Ventures and New Ventures shall be limited to assets consisting of health and fitness clubs, cash and Cash Equivalents and (z) intellectual property may not be so transferred or invested (other than non-exclusive immaterial Intellectual Property). In addition, other than as permitted by Sections 7.04 and 7.09, the Borrower and its Subsidiaries shall not be permitted to make Investments (including in Unrestricted Subsidiaries) which have the effect of paying, purchasing, redeeming or defeasing the Senior Unsecured Notes or the Subordinated Notes or paying dividends on or purchasing or redeeming Capital Stock of the Borrower. For the avoidance of doubt, the Borrower and its Subsidiaries shall not provide Guarantees or other credit support with respect to Unrestricted Subsidiaries after the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (Bally Total Fitness Holding Corp)
Investments and Restricted Payments. Except as otherwise permitted herein, make any Investments in any Person or any Restricted Payments except:
(a) Borrower or any Subsidiary may make Investments in any Guarantor or in the Borrower;
(b) Any Subsidiary may make Restricted Payments to Borrower or any Guarantor;
(c) Borrower may make Investments in cash or Cash Equivalents;
(d) Investments may be made in the ordinary course of business related to employees, such as payments in respect of relocation, entertainment, travel advances, and loans to employees to exercise stock options, all of which Investments do not exceed in the aggregate at any one time One Million Dollars ($1,000,000)2,500,000 or Investments made in the ordinary course of business related to leases such as security deposits or similar items;
(e) Borrower or any Subsidiary may acquire on a friendly basis at least 51100% of each class of capital stockthe Capital Stock, membership interests or partnership interests, of any fitness center located in the United States, provided that such fitness center shall immediately become a Guarantor and shall comply with Section 3.04 hereof. As used in this Section 7.01(e), "“fitness center" ” means any corporation, limited liability company or partnership whose business is comparable to any of the businesses currently operated by Borrower or any of its Subsidiaries (other than a finance company). Notwithstanding the foregoing, the Borrower and its Subsidiaries may finance all or part of the purchase price of any such fitness center by the issuance of purchase money seller Debt or the assumption of Assumed Debt subject to the following: (i) up to 30% of the purchase price (including the assumption of any existing Debt) of any such acquisition may consist of purchase money seller Debt and Assumed Debt, and such seller Debt and Assumed Debt may be secured as permitted by clause (xiv) of the definition of "Permitted Liens", (ii) any other seller Debt and assumed Debt issued to finance such acquisition shall be unsecured and shall be subordinated to prior payment of the Obligations on terms satisfactory to the Agent and (iii) the Borrower and its Subsidiaries shall not be required to provide a security interest in the assets or pledge the capital stock of such fitness center (but such fitness center shall be required to become a Guarantor) pursuant to Article III or the Credit Documents if such provision of a security interest or such pledge is prohibited by the seller Debt or Assumed Debt referred to in clause (i) (the Borrower agreeing that it shall use reasonable efforts to cause such seller Debt and Assumed Debt to be unsecured and to permit the capital stock and assets of such Subsidiary to be pledged to secure the Obligations);
(f) Borrower and its Subsidiaries may make mandatory Investments in Funding Corp., and Funding Corp. may make required Investments in the H&T Master Trust and BTFC, in each case pursuant to and in accordance with the Receivables Program Documents;
(g) Borrower and its Subsidiaries may make mandatory Investments in Finance Subsidiaries, and Finance Subsidiaries may make related required Investments, in each case pursuant to a Receivables Financing Transactions and as long as such Investments are substantially comparable to those required by the Receivables Program Documents;
(h) Investments by the Borrower and its Subsidiaries in New Ventures, Joint Ventures, Foreign Subsidiaries, Lincoln Indemnity Company, and non-Consolidated Subsidiaries, and Unrestricted Subsidiaries and Finance Subsidiaries (i) existing on the Original Closing Date and (ii) made after the Closing Date if Liquidity exceeds $30,000,000 after giving pro forma effect to any such dateInvestment; provided that (A) the aggregate amount of such Investments made after the Original Closing Date (valued at the time of the making thereof, and after taking into account any return after the Original Closing Date from dividends, distributions and repayments in respect of such Investments) does not exceed, at any one time outstanding, $25,000,000 20,000,000 (plus any dividends, distributions and repayments in respect of Investments existing on the Original Closing Date); provided further that with respect to Investments in Finance Subsidiaries, ) and (B) the only aggregate amount of such Investment investments made after the Closing Date (valued at the time of the making thereof, and after taking into account any return after the Closing Date from dividends, distributions and repayments in respect of such Investments) does not exceed $5,000,000 in any fiscal year (except (i) that any portion of such permitted amount not used in any fiscal year may be carried forward to subsequent fiscal years and (ii) for any fiscal year, the amount that would otherwise be permitted to be considered so invested in determining the $25,000,000 limit set forth above are those amounts in excess such fiscal year (including as a result of the amounts allowed carry-forward described in the preceding clause (i)) may be increased by paragraph (fpulling forward to such fiscal year the amount that would be permitted to be so invested in the immediately succeeding fiscal year; provided, however, that the actual amount so pulled forward in respect of any fiscal year shall reduce, on a dollar-for-dollar basis, the amount that would otherwise be permitted to be so invested in the succeeding fiscal year; and provided, further, that the aggregate amount permitted to be so invested may in no event exceed $10,000,000 in any fiscal year) and paragraph (gC) of this Section 7.01; provided further that the cumulative outstanding Investment in any Subsidiary on the date that such Subsidiary is converted to an Unrestricted Subsidiary in accordance with the terms hereof shall be deemed an Investment made on such conversion date in an Unrestricted Subsidiary for purposes of determining compliance with this Section 7.01(f);
(g) Investments to the extent funded by Capital Stock of Borrower issued after the Closing Date or the cash proceeds thereof received after the Closing Date (and Investments of such cash proceeds), provided that such proceeds from issuances of Capital Stock may only be used for Investments if used within nine months of the issuance of such stock;
(h) Investments resulting from (i) the write-off of intercompany loans in connection with the liquidation or dissolution of any Subsidiary permitted hereunder and (ii) the forgiveness of intercompany loans existing as of the Closing Date set forth on Schedule 7.01(h);
(i) Investments to the extent funded by common stock existing as of the Borrower issued after the Original Closing Date as set forth on Schedule 7.01(h) and any modification, replacement, renewal or extension, provided that the proceeds thereof received after the Original Closing Date; andoriginal amount of each such Investment is not increased except as otherwise permitted by this Section 7.01;
(j) Investments consisting resulting from entering into Interest Expense Hedging Agreements;
(k) Investments received in connection with the bankruptcy or reorganization of cash reserves establishedany Person or in settlement of obligations of, or disputes with, any Person arising in the ordinary course of the Borrower’s and its Subsidiaries’ business and consistent upon foreclosure with past practicerespect to any secured Investment or other transfer of title with respect to any secured Investment
(l) Investments arising out of the receipt by Borrower or any of its Subsidiaries of promissory notes and non-cash consideration for Permitted Asset Sales, pursuant provided that the non-cash consideration for any such asset sale shall not exceed 25% of the total consideration therefore; and
(m) Such other Investments in an amount not to the Credit Card Program Agreementexceed $3,000,000 at anytime outstanding.
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Samples: Credit Agreement (Bally Total Fitness Holding Corp)
