Investments in Other Persons. Make or hold, or permit any of its Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) below: (i) equity Investments by BRW and its Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary Guarantors, (B) additional investments in Excluded Entities other than the Mutual Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000, (C) additional investments in Foreign Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $2,000,000, and (D) additional investments in Cincinnati Xxxx Wireless LLC (x) in an aggregate amount invested from January 12, 2000 not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum Assets; (ii) loans and advances to employees in the ordinary course of the business of BRW and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv); (iii) Investments by BRW and its Subsidiaries (including BCI and its Subsidiaries) in Cash Equivalents; (iv) Investments existing on the date hereof and described on Schedule 4.01(v) hereto; (v) Investments by BRW in Hedge Agreements permitted under Section 5.02(b)(i)(A); (vi) Investments consisting of intercompany Debt permitted under Section 5.02(b)(ii); (vii) other Investments made prior to May 1, 2002 and other Investments made on or after May 1, 2002 (other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 at any time with Investments valued, in the case of each Investment, at the time such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investment), provided that with respect to Investments made under this clause (vii): (1) any newly acquired or organized Subsidiary of BRW or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW or any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (viii) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt; (x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries in the ordinary course of business; (xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity; (xii) Investments in respect of Permitted Obligations; (xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code); (xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and (xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi)).
Appears in 2 contracts
Samples: Credit Agreement (Broadwing Inc), Credit Agreement (Broadwing Communications Inc)
Investments in Other Persons. Make or hold, or permit any of its Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xivx) below:
(i) equity Investments by BRW CBI and its Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary GuarantorsSubsidiaries, (B) additional investments in Excluded Entities other than the Mutual Subsidiaries in an aggregate amount invested from January 12, 2000 the date hereof not to exceed $10,000,000, (C) additional investments in Foreign Subsidiaries in an aggregate amount invested from January 12, 2000 the date hereof not to exceed $2,000,000, 2,000,000 and (D) additional investments in Cincinnati Xxxx Wireless LLC (x) L.L.C. in an aggregate amount invested from January 12, 2000 the date hereof not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum Assets25,000,000;
(ii) loans and advances to employees in the ordinary course of the business of BRW CBI and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 at any time outstanding; providedPROVIDED, howeverHOWEVER, for purposes of this Section, “"advances” " will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW CBI and its Subsidiaries (including BCI and its Subsidiaries) in Cash Equivalents;
(iv) Investments existing on the date hereof and described on Schedule 4.01(v) hereto;
(v) Investments by BRW CBI in Hedge Agreements permitted under Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt permitted under Section 5.02(b)(ii);
(vii) other Investments made prior to May 1, 2002 and other Investments made on or after May 1, 2002 (other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 10% of Net Tangible Assets at the time of any time determination with Investments valued, in the case of each Investment, at the time such Investment is made less LESS the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in Net Tangible Assets or the value of such Investment), provided PROVIDED that with respect to Investments made under this clause (vii): (1) any newly acquired or organized Subsidiary of BRW CBI or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiariesthereof; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW CBI or any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW CBI shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW CBI delivered to the Lender Parties demonstrating such compliance; and (5) BRW the applicable Borrower and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viii) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; providedPROVIDED, howeverHOWEVER, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW CBI or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW CBI or any of its Subsidiaries; (4) BRW the applicable Borrower and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); and (5) neither the Borrowers nor any of their Subsidiaries Subsidiary (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW CBI and its Subsidiaries (including BCI and its Subsidiaries) arising pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the CBI's centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002system; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;and
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi)).
Appears in 1 contract
Samples: Credit Agreement (Broadwing Inc)
Investments in Other Persons. Make or hold, or permit any of its Restricted Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies except (each of the requirements of one or more of (i) through (xiv) below:following a “Permitted Investment” and collectively, the “Permitted Investments”):
(i) equity (A) Investments by BRW Holdings and its Restricted Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary GuarantorsEffective Date, (B) additional investments in Excluded Entities other than the Mutual Investments by Holdings and its Restricted Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000their Subsidiaries that are Loan Parties, (C) additional investments Investments by Subsidiaries of the Borrower that are not Loan Parties in Foreign other Subsidiaries in an aggregate amount invested from January 12, 2000 that are not to exceed $2,000,000Loan Parties, and (D) if the Payment Conditions are satisfied, additional investments Investments by the Loan Parties in Cincinnati Xxxx Wireless LLC Subsidiaries that are not Loan Parties (xincluding Subsidiaries that are Excluded Subsidiaries) in an aggregate amount invested from January 12, 2000 the Effective Date not to exceed the greater of (1) $25,000,000 35,000,000 and (y2) other investments resulting in it or its Subsidiaries owning 30.0% of EBITDA for the Spectrum Assetsmost recently completed Measurement Period at any time outstanding;
(ii) loans and advances to employees in the ordinary course of the business of BRW the Borrower and its Restricted Subsidiaries as presently conducted in an aggregate principal amount not to exceed the greater of (1) $25,000,000 5,000,000 and (2) 4.0% of EBITDA for the most recently completed Measurement Period at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW loans to directors, officers and its Subsidiaries employees to purchase Equity Interests of Parent (including BCI and its Subsidiaries) in Cash Equivalentsor any direct or indirect holding company of Parent);
(iv) Investments existing on by the date hereof Borrower and described on Schedule 4.01(v) heretoits Restricted Subsidiaries in bank deposits in the ordinary course of business or Cash Equivalents;
(v) Investments by BRW in Hedge Agreements permitted under Section 5.02(b)(i)(Aexisting on the Effective Date and described on Schedule 5.02(f);
(vi) Investments consisting of intercompany Debt in Hedge Agreements permitted under Section 5.02(b)(ii5.02(b)(iv);
(vii) the purchase or other Investments made prior to May 1acquisition of all or substantially all of the Equity Interests in any Person that, 2002 and other Investments made on or after May 1upon the consummation thereof, 2002 will be wholly owned (other than Investments directors’ qualifying shares or other nominal issuance in BRW order to comply with local laws) directly by the Borrower or one or more of its wholly owned Restricted Subsidiaries (including, without limitation, as a result of a merger or consolidation) and the Mutual purchase or other acquisition by the Borrower or one or more of its wholly-owned (other than directors’ qualifying shares or other nominal issuance in order to comply with local laws) Restricted Subsidiaries of all or substantially all of the property and assets of any Person (collectively, a “Permitted Acquisition”); provided that, with respect to each purchase or other acquisition made pursuant to this clause (vii):
(A) Such purchase or acquisition shall have been approved by the board of directors of the Person (or similar governing body if such Person is not a corporation) which is the subject of such purchase acquisition and such Person shall not have announced that it will oppose such purchase or acquisition or shall not have commenced any action which alleges that such purchase or acquisition shall violate applicable law;
(B) the Loan Parties and any such newly created or acquired domestic Subsidiary shall comply with the requirements of Section 5.01(j);
(C) the lines of business of the Person to be (or the property and assets of which are to be) so purchased or otherwise acquired shall be permitted by Section 5.02(c);
(D) the Borrower shall have furnished the Administrative Agent with ten (10) Business Days’ prior written notice of such intended purchase or acquisition, and pro forma projected financial statements for the twelve (12) month period following such purchase or acquisition after April 15giving effect to such purchase or acquisition (including balance sheets, 2002cash flows and income states for the acquired Person, individually, and on a Consolidated basis with all Loan Parties), and, in addition to the foregoing, the Borrower shall have furnished the Administrative Agent with a current draft of the acquisition documents (and final copies thereof as and when executed), a summary of any due diligence undertaken by the Loan Parties in connection with such purchase or acquisition, and appropriate historical financial statements of the Person which is the subject of such purchase or acquisition;
(E) in an aggregate amount invested not the legal structure of purchase or acquisition shall be reasonably acceptable to exceed $25,000,000 each Agent and the Required Lenders;
(F) the Payment Conditions shall have been satisfied;
(G) (i) with respect to any Acquisition to be consummated prior to the first anniversary of the Effective Date, or at any time where the outstanding principal balance of the Obligations is less than $40,000,000, unless each Agent otherwise agrees in writing in its sole discretion, the EBITDA (as reasonably approved by each Agent) of the Target shall not be less than zero, and (ii) if requested by any Agent, the Loan Parties shall provide a quality of earnings report (in form and substance, and with Investments valuedresults, reasonably acceptable to each Agent), and
(H) the Borrower shall have delivered to the Administrative Agent, on behalf of the Lenders, at least ten (10) Business Days prior to the date on which any such purchase or other acquisition is to be consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to each Agent, certifying that all of the case requirements set forth in this clause (vii) have been satisfied or will be satisfied in all respects on or prior to the consummation of such purchase or other acquisition;
(viii) Investments (A) received in satisfaction or partial satisfaction of accounts from financially troubled Account Debtors (whether in connection with a foreclosure, bankruptcy, workout or otherwise) and (B) consisting of deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of the Borrower and its Restricted Subsidiaries;
(ix) guaranties in the ordinary course of business of obligations owed to or of landlords, suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries or otherwise permitted hereunder;
(x) other cash Investments (other than the purchase or other acquisition of all or substantially all of the Equity Interests in any Person that, upon the consummation thereof, will be wholly owned (other than directors’ qualifying shares or other nominal issuance in order to comply with local laws) directly by the Borrower or one or more of its wholly owned (other than directors’ qualifying shares or other nominal issuance in order to comply with local laws) Restricted Subsidiaries (including, without limitation, as a result of a merger or consolidation) and the purchase or other acquisition by the Borrower or one or more of its wholly-owned (other than directors’ qualifying shares or other nominal issuance in order to comply with local laws) Restricted Subsidiaries of all or substantially all of the property and assets of any Person) made in a Person that is not an Affiliate; provided that, with respect to each InvestmentInvestment made pursuant to this clause (x), at the time Payment Conditions shall have been satisfied;
(xi) the Loan Parties and their Restricted Subsidiaries may (A) acquire and hold accounts receivable owing to any of them if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms, (B) invest in, acquire and hold cash and Cash Equivalents, (C) endorse negotiable instruments held for collection in the ordinary course of business or (D) make lease, utility and other similar deposits in the ordinary course of business;
(xii) the Loan Parties and their Restricted Subsidiaries may sell or transfer amounts and acquire assets to the extent permitted by Section 5.02(e); and
(xiii) any Loan Party and its Restricted Subsidiaries may hold Investments to the extent such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes reflect an increase in the value of such InvestmentInvestments already made. For purposes of determining compliance with the provisions of this Section 5.02(f), provided that with respect to Investments made under this clause by a Loan Party or any of its Subsidiaries (vii): (1the “investor”) in any newly acquired Subsidiary that are effected pursuant to one or organized Subsidiary of BRW more Investments made contemporaneously or in prompt succession by the investor and/or any of its Subsidiaries shall be deemed one Investment by the investor. Notwithstanding anything to the contrary set forth herein, (A) no Intellectual Property shall be the subject of any Investment (including an Investment by any Loan Party of the Equity Interest of any Restricted Subsidiary that owns or holds such Intellectual Property or resulting in Intellectual Property being owned or controlled by a wholly owned Subsidiary that is designated as an Unrestricted Subsidiary or other Excluded Subsidiary) and (B) no other asset included in the determination of BRW any Term Loan Borrowing Base or its Subsidiaries; any ABL Borrowing Base shall be the subject of any Investment in or to any non-Loan Party as provided in this Section 5.02(f) unless, in the case of this Clause (2) immediately B), before and after giving effect theretoto any such Investment, no Default shall have occurred and be continuing or would result therefrom; and the Payment Conditions are satisfied and, at least three (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW or any of its Subsidiaries; (4) immediately after giving effect Business Days prior to the acquisition consummation of a company or business pursuant to this clause (vii)such Investment, BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viii) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default Borrower shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all of an updated Borrowing Base Certificate excluding the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made subject to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to Investment from the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi))calculations thereunder.
Appears in 1 contract
Investments in Other Persons. Make or hold, or permit any of its Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) belowexcept:
(i) equity Investments by BRW the Parent and its Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries Loan Parties or other persons that as a result of BRW that are Subsidiary Guarantors, (B) additional investments in Excluded Entities other than the Mutual Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000, (C) additional investments in Foreign Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $2,000,000, and (D) additional investments in Cincinnati Xxxx Wireless LLC (x) in an aggregate amount invested from January 12, 2000 not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum Assetssuch investment become Loan Parties;
(ii) loans and advances to employees in the ordinary course of the business of BRW the Parent and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 2,000,000 at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW the Parent and its Subsidiaries (including BCI and its Subsidiaries) in cash or Cash Equivalents;
(iv) Investments existing on the date hereof and described on Schedule 4.01(v4.01(x) hereto;
(v) Investments by BRW the Borrower in Hedge Agreements permitted under Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt permitted under Section 5.02(b)(i)(B) or 5.02(b)(ii);
(vii) Investments in Permitted Joint Ventures, provided that (1) the aggregate amount of all such Investments does not exceed the sum of (A) 10% of the aggregate book value of all of the assets of the Parent and its Subsidiaries plus (B) the portion of Excess Cash Flow not required to be applied to the prepayment of the Advances pursuant to Section 2.06(b)(i) plus (C) the portion of the proceeds of an offering of Equity Interests of the Parent not required to be applied to the prepayment of the Advances pursuant to Section 2.06(b)(ii) to the extent that such portion shall not have been otherwise applied as permitted hereunder and (2) any such Investment is made with either cash generated by properties of the Parent and its Subsidiaries other than the Hotel Collateral or assets that do not constitute Hotel Collateral; and
(viii) other Investments made prior to May 1, 2002 and other Investments made on or after May 1, 2002 (other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 at any time with Investments valued, in the case of each Investment, at the time such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investment), 10,000,000; provided that with respect to Investments made under this clause (viiviii): (1) any newly acquired or organized Subsidiary of BRW or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (32) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW the Borrower or any of its Subsidiaries; and (43) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW the Borrower shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW the Parent delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viii) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi)).
Appears in 1 contract
Investments in Other Persons. Make or hold, or permit any of its Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) belowPerson other than:
(iA) equity Investments by BRW Paxar and its domestic Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and additional Investments in wholly owned domestic Subsidiaries of Paxar that, prior to the making of such Investments, were wholly owned Subsidiaries of Paxar, (AB) additional investments Investments by Paxar and its Subsidiaries in wholly owned Subsidiaries of BRW Paxar that, prior to the making of such Investments were not wholly owned Subsidiaries of Paxar, provided that are Subsidiary Guarantorsboth before and after giving effect to such Investment, no Default shall have occurred and be continuing and Paxar must deliver, prior to such Investment, a certificate of the chief financial officer of Paxar, describing such Investment and demonstrating compliance with the covenants (Bon a pro forma basis giving effect to such Investment) additional investments set forth in Excluded Entities other than Section 5.03, and the Mutual Investment is the same line of business as the Borrowers and its Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000, or reasonably related thereto and (C) additional investments Investments by the foreign Subsidiaries of Paxar in Foreign their Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $2,000,000, and (D) additional investments in Cincinnati Xxxx Wireless LLC (x) in an aggregate amount invested from January 12, 2000 not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning outstanding on the Spectrum Assetsdate hereof;
(ii) loans and advances to employees in the ordinary course of the business of BRW Paxar and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 5,000,000 at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW and its Subsidiaries (including BCI and its Subsidiaries) in Cash Equivalents;
(iv) Investments existing on in overnight Eurodollar deposits with any commercial bank that is a Lender Party or a member of the date hereof Federal Reserve System, issues (or the parent of which issues) commercial paper rated as described in clause (c) of the definition of "Cash Equivalents", is organized under the laws of the United States or any State thereof and described on Schedule 4.01(v) heretohas combined capital and surplus of at least $1 billion;
(v) Investments by BRW in Hedge Agreements permitted under Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt permitted under Section 5.02(b)(ii5.02(d)(ii);; and
(viivi) other Investments made prior to May 1, 2002 and other Investments made on or after May 1, 2002 (other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 at any time with Investments valued, in the case of each Investment, at the time such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investment), provided that with respect to Investments made under this clause (vii): (1) any newly acquired or organized Subsidiary of BRW or any of its Subsidiaries shall be a Persons other than wholly owned Subsidiary of BRW or its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW or any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viii) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi)).
Appears in 1 contract
Samples: Credit Agreement (Paxar Corp)
Investments in Other Persons. Make or hold, or permit any of its Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) belowexcept:
(i) so long as no Event of Default has occurred and is continuing or would occur after giving effect thereto, (A) equity Investments by BRW and the Borrower and/or its Subsidiaries in New Millenium Building Systems, LLC, an Indiana limited liability company (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary Guarantors"NMBS"), (B) additional investments in Excluded Entities other than the Mutual Subsidiaries in an aggregate amount invested from January 12, 2000 and after the Effective Date not to exceed $10,000,0005,000,000, and (CB) additional investments equity Investments by the Borrower and/or its Subsidiaries in Foreign their Subsidiaries (other than IDI) and/or NMBS in an aggregate amount invested from January 12, 2000 and after the Effective Date not to exceed $2,000,000, and (D) additional investments in Cincinnati Xxxx Wireless LLC (x) in an aggregate amount invested from January 12, 2000 not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum Assets5,000,000;
(ii) loans and advances to employees in the ordinary course of the business of BRW the Borrower and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 500,000 at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW the Borrower and its Subsidiaries (including BCI and its Subsidiaries) in Cash Equivalents;
(iv) Investments existing on the date hereof and described on Schedule 4.01(v4.01(y) hereto;
(v) Investments by BRW the Borrower in Hedge Agreements permitted under Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt permitted under Section 5.02(b)(i)(B) or 5.02(b)(ii);
(vii) so long as no Event of Default has occurred and is continuing or would occur after giving effect thereto, other Investments made prior to May 1, 2002 and other Investments made on or after May 1, 2002 (other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002IDI) in an aggregate amount invested not to exceed (A) $25,000,000 at 5,000,000 for Fiscal Year 2002 (subject to the carry forward of any time with Investments valuedunused amounts thereof), (B) $5,000,000 for Fiscal Year 2003 (subject to the carry forward of any unused amounts thereof) and (C) without duplication, up to $10,000,000 in the case aggregate of such additional Investments for all Fiscal Years if (and only if), for purposes of this sub-clause (C) only, the Total Debt/Adjusted EBITDA Ratio calculated to give pro forma effect to each Investment, such Investment is equal to or less than 3.00:1.00 at the time each such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investment), made; provided that with respect to any Investments made under this clause (vii): (1) any if such Investment is in a newly acquired or organized Subsidiary of BRW the Borrower or any of its Subsidiaries Subsidiaries, such Person shall be a wholly owned Subsidiary of BRW or its Subsidiariesthereof; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same or related line of business (or a related line of business) as the business of BRW the Borrower or any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW the Borrower shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW the Borrower delivered to the Lender Parties demonstrating such compliance; and (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary Investment shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall only be made by a Subsidiary of BRW that is a Subsidiary Guarantorafter the Net Cash Proceeds from asset sales or Excess Cash Flow shall have been applied to prepay the Advances in accordance with this agreement; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);and
(viii) Investments other than Investments in BRW so long as no Event of Default has occurred and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW continuing or any of its Subsidiaries; (2) immediately before and would occur after giving effect thereto, no Default shall have occurred Investments by the Borrower and its Subsidiaries in IDI, as follows: (1) $5,000,000 for Fiscal Year 2002 for the maintenance of the IDI facility in "cold idle", (2) up to $6,000,000, to be continuing or would result therefrom; paid solely from the proceeds of the Mitsubishi Settlement Agreement, to conduct start-up tests with respect to the technology used in the IDI facility, and (3) up to an additional $25,000,000 in the aggregate for all Fiscal Years thereafter if (and only if), for purposes of this sub-clause (3) only, (I) prior to making any company such Investments the Administrative Agent and the Arranger shall have obtained Positive IDI Test Results and (II) the Total Debt/Adjusted EBITDA Ratio calculated to give pro forma effect to each such Investment in IDI is equal to or business acquired or invested less than 3.00:1.00 at the time each such Investment is made; provided that there shall be excluded from the calculation of any Investments by the Borrower and its Subsidiaries in IDI pursuant to this clause Section 5.02(f)(viii), (viiiY) shall be in any shares of capital stock of the same line Borrower issued and contributed by the Borrower with respect to the IDI Settlement Agreement and (Z) any non-cash amounts allocated with respect to the cost of business (or related line of business) as services rendered by the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable Borrower for the Debt benefit of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries IDI in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi)).
Appears in 1 contract
Investments in Other Persons. Make or hold, or permit any of its Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) belowPerson other than:
(i) equity Investments by BRW Global and its Subsidiaries (including BCI may acquire and its Subsidiaries) hold receivables owing to them, if created or acquired in their Subsidiaries outstanding on the date hereof ordinary course of business and (A) additional investments payable or dischargeable in wholly owned Subsidiaries of BRW that are Subsidiary Guarantors, (B) additional investments in Excluded Entities other than the Mutual Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000, (C) additional investments in Foreign Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $2,000,000, and (D) additional investments in Cincinnati Xxxx Wireless LLC (x) in an aggregate amount invested from January 12, 2000 not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum Assetsaccordance with prudent business practices;
(ii) loans and advances to employees in the ordinary course Investments by Global or any of the business of BRW and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv)Cash Equivalents;
(iii) Investments by BRW and Global or any of its Subsidiaries resulting from Hedge Agreements permitted under Section 5.02(b)(i) or (including BCI and its Subsidiaries) in Cash Equivalentsii)(C);
(iv) Investments existing on (a) by Global Operations and the date hereof Managing Partner in the Joint Venture Company in accordance with the terms of the Partnership Agreement and described on Schedule 4.01(v(b) heretoby Global Operations in IMC Partner, the Managing Partner and the Joint Venture Company, in each case pursuant to and in accordance with the Partnership Agreement or as otherwise permitted under Section 5.02(b)(iii)(A);
(v) Investments Equity investments by BRW Global or any of its Subsidiaries in Hedge Agreements permitted under Section 5.02(b)(i)(A)any of its Subsidiaries made prior to the date hereof;
(vi) Investments consisting by Global or any of intercompany Debt permitted under Section 5.02(b)(iiits Subsidiaries in any third party made prior to the date hereof and set forth on Schedule 5.02(e);
(vii) Investments in connection with the acquisition of all or a material part of the assets or capital stock or other Investments made equity interest of any Person provided, however, that in connection with any such acquisition for which the aggregate consideration payable in connection therewith is in excess of 5% of Adjusted Tangible Net Worth (calculated as at the end of the most recent fiscal quarter for which financial statements have been furnished to the Lenders pursuant to Section 5.03(b) or (c)), Global shall have delivered to the U.S. Administrative Agent an officer's certificate executed by the chief financial officer or treasurer of Global which certificate shall (a) demonstrate that on a pro forma basis determined as if such acquisition had been consummated on the date occurring 12 months prior to May 1the last day of the most recently ended fiscal quarter for which financial statements have been furnished to the Lenders pursuant to Section 5.03(b) or (c), 2002 Global and other Investments made its Subsidiaries would have been in compliance with Section 5.04(b) for the relevant period ended on or after May 1, 2002 (other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 at any time with Investments valued, in the case of each Investment, at the time such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value last day of such Investment)fiscal quarter, provided (b) demonstrate compliance with Section 5.04(a) and 5.04(c) after giving effect to such acquisition, and (c) state that with respect to Investments made under this clause no Default then exists or would result therefrom;
(vii): (1viii) any newly acquired or organized Subsidiary of BRW Global or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiaries; (2) immediately before may acquire and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) hold promissory notes received in connection with any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW or any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties asset sale permitted pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viii) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j5.02(d)(ix);
(ix) Equity Investments consisting of debits and credits between Broadwing Financial LLC and BRW made after the date hereof by Global and its Subsidiaries (including BCI and in any of its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loansDebt owing to Global or any of its Subsidiaries permitted under Section 5.02(b)(i) or (ii)(E), advances and payables due from suppliers (F) or customers made by the Borrowers or their Subsidiaries in the ordinary course of business(G);
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) guaranties by Global of Section 5.02(g) and (z) debt service for Debt of BRW that is its Subsidiaries to the extent permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (xSection 5.02(b), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect consisting of Permitted Obligationsthe purchase, repurchase, self-tender or redemption of capital stock of Global;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding special purpose vehicles on a basis consistent with the securitization program for the Joint Venture Company in effect on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding hereof in connection with a Prepackaged Plan or a sale agreement executed prior securitizations, to commencement of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);extent otherwise permitted hereunder; and
(xiv) other Investments having an aggregate cost at any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount time not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi))35,000,000.
Appears in 1 contract
Samples: Credit Agreement (Imc Global Inc)
Investments in Other Persons. Make or hold, or permit any of its Restricted Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies except (each of the requirements of one or more of (i) through (xiv) below:following a “Permitted Investment” and collectively, the “Permitted Investments”):
(i) equity (A) Investments by BRW Holdings and its Restricted Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary GuarantorsThird Amendment Signing Date, (B) additional investments in Excluded Entities other than the Mutual Investments by Holdings and its Restricted Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000their Subsidiaries that are Loan Parties, (C) additional investments Investments by Holdings and its Restricted Subsidiaries in Foreign Subsidiaries the Costa Rica Subsidiary in an aggregate amount invested from January 12, 2000 not to exceed (i) for the calendar year ending December 31, 2022, $2,000,0004,000,000, (ii) from January 1, 2023 through December 31, 2023, $6,000,000 plus any unused capacity under the foregoing clause (i), (iii) from January 1, 2024 through December 31, 2024, $8,000,000 plus any unused capacity under the foregoing clauses (i) and (ii), and (iv) for each calendar year thereafter, $10,000,000 plus any unused capacity under the foregoing clauses (i) through (iii), (D) additional investments Investments by Subsidiaries of the Borrower that are not Loan Parties in Cincinnati Xxxx Wireless LLC other Subsidiaries that are not Loan Parties, and (xE) additional Investments by the Loan Parties in Subsidiaries that are not Loan Parties (including Subsidiaries that are Excluded Subsidiaries) in an aggregate amount invested from January 12, 2000 the Third Amendment Signing Date not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum Assets20,000,000 at any time outstanding;
(ii) loans and advances to employees in the ordinary course of the business of BRW the Borrower and its Restricted Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 7,500,000 at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW loans to directors, officers and its Subsidiaries employees to purchase Equity Interests of Parent (including BCI and its Subsidiaries) in Cash Equivalentsor any direct or indirect holding company of Parent);
(iv) Investments existing on by the date hereof Borrower and described on Schedule 4.01(v) heretoits Restricted Subsidiaries in bank deposits in the ordinary course of business or Cash Equivalents;
(v) Investments by BRW in Hedge Agreements permitted under Section 5.02(b)(i)(Aexisting on the Third Amendment Effective Date and described on Schedule 5.02(f);
(vi) Investments consisting of intercompany Debt in Hedge Agreements permitted under Section 5.02(b)(ii5.02(b)(iv);
(vii) (x) the purchase or other Investments made prior to May 1acquisition of all or substantially all of the Equity Interests in any Person that, 2002 and other Investments made on or after May 1upon the consummation thereof, 2002 will be wholly owned (other than Investments directors’ qualifying shares or other nominal issuance in BRW order to comply with local laws) directly by the Borrower or one or more of its wholly owned Restricted Subsidiaries (including, without limitation, as a result of a merger or consolidation) or (y) the purchase or other acquisition by the Borrower or one or more of its wholly-owned (other than directors’ qualifying shares or other nominal issuance in order to comply with local laws) Restricted Subsidiaries of all or substantially all of the property and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 at assets of any time with Investments valued, Person (any such purchase or other acquisition described in the case foregoing clause (x) or (y), an “Acquisition”, and any such Acquisition that satisfies each of the following requirements in this clause (vii), a “Permitted Acquisition”); provided that, with respect to each Investment, at Acquisition made pursuant to this clause (vii):
(A) such Acquisition is not a hostile or contested purchase or acquisition;
(B) the time Loan Parties and any such Investment is made less newly created or acquired domestic Subsidiary shall comply with the requirements of Section 5.01(j) to the extent required to do so; provided that the aggregate amount of Investments made under Section 5.02(f)(viiiconsideration paid in respect of Permitted Acquisitions of Persons that do not become Loan Parties shall not exceed $20,000,000;
(C) (it being understood that any Investment may continue the lines of business of the Person to be (or the property and assets of which are to be) so purchased or otherwise acquired shall be permitted by Section 5.02(c);
(D) with respect to any Acquisition, the consideration for which is in excess of $25,000,000, the Borrower shall have furnished the Administrative Agent with ten (10) Business Days’ prior written notice of such intended Acquisition, and pro forma projected financial statements for the twelve (12) month period following such Acquisition after giving effect to such Acquisition (including balance sheets, cash flows and income states for the acquired Person, individually, and on a Consolidated basis with all Loan Parties), and, in addition to the foregoing, the Borrower shall have furnished the Administrative Agent with a current draft of the acquisition documents (and final copies thereof as and when executed), a summary of any due diligence undertaken by the Loan Parties in connection with such Acquisition, and appropriate historical financial statements of the Person which is the subject of such Acquisition;
(E) the Payment Conditions shall have been satisfied; and
(F) the Borrower shall have delivered to the Administrative Agent, on behalf of the Lenders, at least two (2) Business Days (or such shorter period as the Administrative Agent may agree in its sole discretion) prior to the date on which any such Acquisition is to be consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in this clause (vii) have been satisfied or will be satisfied in all respects on or prior to the consummation of such Acquisition;
(viii) Investments (A) received in satisfaction or partial satisfaction of accounts from financially troubled Account Debtors (whether in connection with a foreclosure, bankruptcy, workout or otherwise) and (B) consisting of deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of the Borrower and its Restricted Subsidiaries;
(ix) guaranties in the ordinary course of business of obligations owed to or of landlords, suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries or otherwise permitted hereunder;
(x) [reserved];the JV IP Transactions contemplated under the JV IP Transaction Documents (as in effect on the Fourth Amendment Effective Date) to be consummated on the Fourth Amendment Effective Date, to the extent consummated on the Fourth Amendment Effective Date in accordance with such JV IP Transaction Documents;
(xi) the Loan Parties and their Restricted Subsidiaries may (A) acquire and hold accounts receivable owing to any of them if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms, (B) invest in, acquire and hold cash and Cash Equivalents, (C) endorse negotiable instruments held if for collection in the ordinary course of business or (D) make lease, utility and other similar deposits in the ordinary course of business;
(xii) the Loan Parties and their Restricted Subsidiaries may sell or transfer amountsmake Transfers and acquire assets, in each case to the extent permitted when made notwithstanding subsequent changes by Section 5.02(e);
(xiii) any Loan Party and its Restricted Subsidiaries may hold Investments to the extent such Investments reflect an increase in the value of such Investment)Investments already made;
(xiv) Investments (other than Acquisitions) not otherwise specifically permitted herein in an aggregate principal amount not to exceed, provided that with respect as to all Investments made under in reliance on this clause (vii): xiv) outstanding at any time, $7,500,000;
(1xv) Investments by Restricted Subsidiaries that are not Loan Parties, which Investments are not otherwise specifically permitted herein, in an aggregate principal amount not to exceed, as to all Investments made in reliance on this clause (xv) outstanding at any newly acquired time, $7,500,000; and
(xvi) other Investments (other than Acquisitions) not otherwise specifically permitted above, provided, that, as of the date of any such Investment and after giving effect thereto, the Payment Conditions shall have been satisfied. For purposes of determining compliance with the provisions of this Section 5.02(f), Investments made by a Loan Party or organized any of its Subsidiaries (the “investor”) in any Subsidiary of BRW that are effected pursuant to one or more Investments made contemporaneously or in prompt succession by the investor and/or any of its Subsidiaries shall be deemed one Investment by the investor. Notwithstanding anything to the contrary set forth herein, (a) no Intellectual Property owned by a wholly Loan Party or Restricted Subsidiary or in which Loan Party or Restricted Subsidiary has rights under any applicable license agreement (and if any such license agreement is a JV IP License Agreement, as such JV IP License Agreement is in effect on the Fourth Amendment Effective Date or subsequently amended in accordance with Section 5.02(k)(ii)) shall be the subject of any Investment (including an Investment by any Loan Party of the Equity Interest of any Restricted Subsidiary that owns or holds such Intellectual Property or resulting in such Intellectual Property being owned or controlled by a Subsidiary that is designated as an Unrestricted Subsidiary or other Excluded Subsidiary) and (b) no other asset included in the determination of BRW any Borrowing Base or its Subsidiaries; any Term Loan Borrowing Base shall be the subject of any Investment in or to any non-Loan Party as provided in this Section 5.02(f) unless, in the case of this clause (2b), (i) immediately before and after giving effect theretoto any such Investment, no Default shall have occurred and be continuing and the Payment Conditions are satisfied, (ii) in connection with Investments in respect of assets (in one transaction or would result therefrom; a series of related transactions) having an aggregate fair market value in excess of $5,000,000, at least three (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW or any of its Subsidiaries; (4) immediately after giving effect Business Days prior to the acquisition consummation of a company or business pursuant to this clause (vii)such Investment, BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viii) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default Borrower shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant an updated Borrowing Base Certificate and an updated Term Loan Borrowing Base Certificate excluding the assets subject to such Investment from the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereofcalculations thereunder, and (IIiii) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at contemporaneously therewith, the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) Borrower shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of made such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to payments as are required by Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi)2.06(b).
Appears in 1 contract
Investments in Other Persons. Make or hold, or permit any of its Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) belowPerson other than:
(ia) equity Investments by BRW the Borrower and its Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary Guarantors, (B) additional investments in Excluded Entities other than the Mutual Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000, (C) additional investments in Foreign Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $2,000,000, and (D) additional investments in Cincinnati Xxxx Wireless LLC (x) in an aggregate amount invested from January 12, 2000 not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum Assetsdescribed on Schedule 6.6(a);
(iib) loans Loans and advances to officers and other employees in the ordinary course of the business (including, without limitation, to permit such officers and employees to purchase restricted stock of BRW the Borrower) of the Borrower and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 at any time outstanding; provided236,484.47 as set forth on Schedule 6.6(b) (the "Officer Loan Limitation"), howeverwhich amount shall be reduced by all payments of principal thereunder, for purposes of this Sectionand, “advances” will not restrict advances for travel expenses to employees advanced and further, which amounts repaid in thereunder shall reduce the ordinary course of business; provided further that Officer Loan Limitation by such loans and advances are made in compliance with Section 5.01(t)(iv)amount;
(iiic) Investments by BRW the Borrower and its Subsidiaries (including BCI and its Subsidiaries) in Cash EquivalentsEquivalents in an aggregate amount not to exceed $1,200,000 and which Investments shall be maintained in accounts each subject to the execution of an account control agreement in favor of the Administrative Agent for the benefit of the Lenders;
(iv) Investments existing on the date hereof and described on Schedule 4.01(v) hereto;
(v) Investments by BRW in Hedge Agreements permitted under Section 5.02(b)(i)(A);
(vid) Investments consisting of intercompany Debt permitted under Section 5.02(b)(ii6.2(b);
(viie) other Investments made prior to May 1, 2002 and other Investments made on or after May 1, 2002 (other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 at any time with Investments valued, in the case of each Investment, at the time such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investment), provided that with respect to Investments made under this clause (vii): (1) any newly acquired or organized Subsidiary of BRW or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW or any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based existing on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 Closing Date and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5described on Schedule 6.6(f) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j)hereto;
(viiif) Investments other than Investments in BRW and by the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW Borrower and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries deposit accounts opened in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends provided however, such deposit accounts are opened and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory exist subject to the Agents, and such promissory notes shall be pledged as security for the Obligations terms of the holder thereof under the Loan Documents to which such holder is a party and delivered an account control agreement otherwise acceptable to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid in form and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equitysubstance;
(xii) Investments in respect of Permitted Obligations;
(xiii) (Ig) Investments by BRW the Borrower and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long joint ventures existing as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired Amendment Closing Date as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ixset forth on Schedule 6.6(g); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (yh) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) accounts receivable in the case ordinary course of CBT, Investments made pursuant to business."
(l) Section 5.02(f)(vi)).6.7 of the Credit Agreement is hereby amended by deleting the section appearing therein and replacing in its entirety the following:
Appears in 1 contract
Investments in Other Persons. Make or hold, or permit any of its Restricted Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) belowexcept:
(i) equity (A) Investments by BRW the Parent and its Restricted Subsidiaries (including BCI and its Subsidiaries) in their Restricted Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary Guarantorshereof, (B) additional investments Investments by the Parent and its Restricted Subsidiaries in Loan Parties, (C) additional Investments by Restricted Subsidiaries of the Borrower that are not Loan Parties in other Restricted Subsidiaries that are not Loan Parties, (D) additional Investments by the Loan Parties in Restricted Subsidiaries that are not Loan Parties (including Subsidiaries that are Excluded Entities other than Subsidiaries) in an aggregate amount (net of any Investment Credit) invested from the Mutual date hereof not to exceed the greater of (1) $24,000,000 and (2) 12% of Consolidated total assets at the time such Investment is made, and (E) Investments in Unrestricted Subsidiaries in an aggregate amount invested from January 12, 2000 for such Investments (together with the aggregate amount of Investments made pursuant to clause (D) of this Section 5.02(f)(i) and net of any Investment Credit) not to exceed the greater of (1) $10,000,000, (C) additional investments in Foreign Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $2,000,000, 24,000,000 and (D2) additional investments in Cincinnati Xxxx Wireless LLC (x) in an aggregate amount invested from January 12, 2000 not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning 10% of Consolidated total assets at the Spectrum Assetstime such Investment is made;
(ii) loans and advances to employees in the ordinary course of the business of BRW the Borrower and its Restricted Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 2,400,000 at any time outstanding; provided;
(iii) loans to directors, howeverofficers and employees to purchase Equity Interests of Parent, for purposes of this Section, “advances” will in an aggregate amount not restrict advances for travel expenses to employees advanced exceed $2,400,000 at any time outstanding;
(iv) Investments by the Borrower and repaid its Subsidiaries in bank deposits in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW and its Subsidiaries (including BCI and its Subsidiaries) in business or Cash Equivalents;
(ivv) Investments existing on the date hereof and described on Schedule 4.01(v4.01(y) heretoto the Disclosure Letter;
(vvi) Investments by BRW in Hedge Agreements permitted under Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt permitted under Section 5.02(b)(ii5.02(b)(v);
(vii) the purchase or other Investments made prior to May 1acquisition of all or substantially all of the Equity Interests in any Person that, 2002 and other Investments made on upon the consummation thereof, will be wholly owned directly by the Borrower or after May 1one or more of its wholly owned Subsidiaries (including, 2002 (other than Investments in BRW without limitation, as a result of a merger or consolidation) and the Mutual purchase or other acquisition by the Borrower or one or more of its wholly-owned Restricted Subsidiaries made after April 15of all or substantially all of the property and assets of any Person (collectively, 2002) in an aggregate amount invested not to exceed $25,000,000 at any time with Investments valued“Acquisition”); provided that, in the case of each Investment, at the time such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investment), provided that with respect to Investments each purchase or other acquisition made under this clause (vii): (1) any newly acquired or organized Subsidiary of BRW or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (vii):
(A) shall be in the same line of business (or a related line of business) as the business of BRW or Loan Parties and any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of Section 5.01(j);
(viiiB) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount lines of $50,000,000 for any investments valued as business of the date Person to be (or the property and assets of which are to be) so purchased or otherwise acquired shall be permitted by Section 5.02(c);
(C) such Investment purchase or other acquisition shall not include or result in any contingent liabilities that could reasonably be expected to have a Material Adverse Effect on the Borrower and its Restricted Subsidiaries, taken as a whole (as determined in good faith by the board of directors (or the persons performing similar functions) of the Borrower, if the board of directors is madeotherwise approving such transaction, or, in each other case, by the Responsible Officer of the Borrower);
(D) the total cash consideration (including, without limitation, joint ventures; providedall indemnities, howeverearnouts and other contingent payment obligations to, that and the aggregate amounts paid or to be paid under noncompete, consulting and other affiliated agreements with, the sellers of such Person or assets, and all assumptions of debt, liabilities and other obligations in connection therewith permitted by Section 5.02(b)(ix)) paid by or on behalf of the Borrower and its Subsidiaries for any such purchase or other acquisition, shall not exceed $24,000,000 for any single purchase or acquisition, and when aggregated with respect the total cash and noncash consideration paid by or on behalf of the Borrower and its Restricted Subsidiaries for all other purchases and other acquisitions made by the Borrower and its Restricted Subsidiaries pursuant to this clause (vii), shall not exceed the greater of $60,000,000 or 24% of Consolidated total assets at the time any joint venture, such Investment shall be purchase or other acquisition is made;
(1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and immediately after giving effect theretoto any such purchase or other acquisition, no Event of Default shall have occurred and be continuing and (2) immediately after giving effect to such purchase or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) other acquisition, the Parent and its Restricted Subsidiaries shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply pro forma compliance with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt all of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions covenants set forth in Section 5.02(f)(xi)5.04, and Investments that arose under such compliance to be determined (x) as of the centralized cash management system between BRW and its Subsidiaries last day of the most recently ended fiscal quarter as though such purchase or other acquisition had been consummated as of the first day of the four fiscal quarter period then ended; or (including BCI and its Subsidiariesy) in such other manner as may be reasonably determined by the Administrative Agent; and
(F) the Borrower shall have delivered to the Administrative Agent, on behalf of the Lender Parties, at least five Business Days prior to May 31the date on which any such purchase or other acquisition is to be consummated, 2002; provided further a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in this clause (vii) have been satisfied or will be satisfied on or prior to the consummation of such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debtpurchase or other acquisition;
(xviii) Investments consisting in the nature of loanslease, advances and payables due from suppliers utility, governmental, performance or customers made by the Borrowers or their Subsidiaries similar deposits in the ordinary course of business;
(xiix) Investments (A) received in satisfaction or partial satisfaction of accounts from financially troubled account debtors (whether in connection with a foreclosure, bankruptcy, workout or otherwise) and (B) consisting of deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of Company and its Restricted Subsidiaries;
(x) Investments consisting of prepaid royalties or expenses or notes receivable arising from the sale or lease of goods or services in the ordinary course of business, or non-cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to consideration received in clauses (iv) and (v) connection with a sale of Section 5.02(g) and (z) debt service for Debt of BRW that is assets permitted under this Agreement; provided that Section 5.02(e);
(1xi) such advances are evidenced by promissory notesguaranties in the ordinary course of business of obligations owed to or of landlords, in form suppliers, customers, franchisees and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations licensees of the holder thereof under the Loan Documents to which such holder is a party Borrower and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) aboveits Restricted Subsidiaries; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;and
(xii) other Investments in respect an aggregate amount not to exceed at any time the sum of Permitted Obligations;
(xiiiA) (I) Investments by BRW the greater of $24,000,000 and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that 12% of Consolidated total assets at the time createdof making such Investment and (B) net proceeds received from Investments permitted under this Section 5.02(f). For purposes of determining compliance with the provisions of this Section 5.02(f), incurred, assumed, Investments made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI by Company or any of its Restricted Subsidiaries (other than a proceeding the “investor”) in connection with a Prepackaged Plan any Restricted Subsidiary that are effected pursuant to one or a sale agreement executed prior to commencement more Investments made contemporaneously or in prompt succession by the investor and/or any of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to deemed one Investment by the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi))investor.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Metrologic Instruments Inc)
Investments in Other Persons. Make or hold, or permit any of its Restricted Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies except (each of the requirements of one or more of (i) through (xiv) below:following a “Permitted Investment” and collectively, the “Permitted Investments”):
(i) equity (A) Investments by BRW Holdings and its Restricted Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary GuarantorsEffective Date, (B) additional investments in Excluded Entities other than the Mutual Investments by Holdings and its Restricted Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000their Subsidiaries that are Loan Parties, (C) additional investments Investments by Holdings and its Restricted Subsidiaries in Foreign Subsidiaries the Costa Rica Subsidiary in an aggregate amount invested from January 12, 2000 not to exceed (i) from January 1, 2023 through December 31, 2023, $2,000,0006,000,000, (ii) from January 1, 2024 through December 31, 2024, $8,000,000 plus any unused capacity under the foregoing clause (i), and (iii) for each calendar year thereafter, $10,000,000 plus any unused capacity under the foregoing clauses (i) and (ii)], (D) additional investments Investments by Subsidiaries of the Borrower that are not Loan Parties in Cincinnati Xxxx Wireless LLC other Subsidiaries that are not Loan Parties, and (xE) additional Investments by the Loan Parties in Subsidiaries that are not Loan Parties (including Subsidiaries that are Excluded Subsidiaries) in an aggregate amount invested from January 12, 2000 the Effective Date not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum Assets20,000,000 at any time outstanding;
(ii) loans and advances to employees in the ordinary course of the business of BRW the Borrower and its Restricted Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 7,500,000 at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW loans to directors, officers and its Subsidiaries employees to purchase Equity Interests of Parent (including BCI and its Subsidiaries) in Cash Equivalentsor any direct or indirect holding company of Parent);
(iv) Investments existing on by the date hereof Borrower and described on Schedule 4.01(v) heretoits Restricted Subsidiaries in bank deposits in the ordinary course of business or Cash Equivalents;
(v) Investments by BRW in Hedge Agreements permitted under Section 5.02(b)(i)(Aexisting on the Effective Date and described on Schedule 5.02(f);
(vi) Investments consisting of intercompany Debt in Hedge Agreements permitted under Section 5.02(b)(ii5.02(b)(iv);
(vii) (x) the purchase or other Investments made prior to May 1acquisition of all or substantially all of the Equity Interests in any Person that, 2002 and other Investments made on or after May 1upon the consummation thereof, 2002 will be wholly owned (other than Investments directors’ qualifying shares or other nominal issuance in BRW order to comply with local laws) directly by the Borrower or one or more of its wholly owned Restricted Subsidiaries (including as a result of a merger or consolidation) or (y) the purchase or other acquisition by the Borrower or one or more of its wholly owned (other than directors’ qualifying shares or other nominal issuance in order to comply with local laws) Restricted Subsidiaries of all or substantially all of the property and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 at assets of any time with Investments valued, Person (any such purchase or other acquisition described in the case foregoing clause (x) or (y), an “Acquisition”, and any such Acquisition that satisfies each of the following requirements in this clause (vii), a “Permitted Acquisition”); provided that, with respect to each Investment, at Acquisition made pursuant to this clause (vii):
(A) such Acquisition is not a hostile or contested purchase or acquisition;
(B) the time Loan Parties and any such Investment is made less newly created or acquired domestic Subsidiary shall comply with the requirements of Section 5.01(j) to the extent required to do so; provided that the aggregate amount of Investments made under Section 5.02(f)(viiiconsideration paid in respect of Permitted Acquisitions of Persons that do not become Loan Parties shall not exceed $20,000,000;
(C) (it being understood that any Investment may continue the lines of business of the Person to be (or the property and assets of which are to be) so purchased or otherwise acquired shall be permitted by Section 5.02(c);
(D) with respect to any Acquisition, the consideration for which is in excess of $25,000,000, the Borrower shall have furnished the Administrative Agent with ten (10) Business Days’ prior written notice of such intended Acquisition, and pro forma projected financial statements for the twelve (12) month period following such Acquisition after giving effect to such Acquisition (including balance sheets, cash flows and income states for the acquired Person, individually, and on a Consolidated basis with all Loan Parties), and, in addition to the foregoing, the Borrower shall have furnished the Administrative Agent with a current draft of the acquisition documents (and final copies thereof as and when executed), a summary of any due diligence undertaken by the Loan Parties in connection with such Acquisition, and appropriate historical financial statements of the Person which is the subject of such Acquisition;
(E) the Payment Conditions shall have been satisfied; and
(F) the Borrower shall have delivered to the Administrative Agent, on behalf of the Lenders, at least two (2) Business Days (or such shorter period as the Administrative Agent may agree in its sole discretion) prior to the date on which any such Acquisition is to be consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in this clause (vii) have been satisfied or will be satisfied in all respects on or prior to the consummation of such Acquisition;
(viii) Investments (A) received in satisfaction or partial satisfaction of accounts from financially troubled Account Debtors (whether in connection with a foreclosure, bankruptcy, workout or otherwise) and (B) consisting of deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of the Borrower and its Restricted Subsidiaries;
(ix) guaranties in the ordinary course of business of obligations owed to or of landlords, suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries or otherwise permitted hereunder;
(x) the JV IP Transactions and Bonobos IP Transactions consummated prior to the date hereof;
(xi) the Loan Parties and their Restricted Subsidiaries may (A) acquire and hold accounts receivable owing to any of them if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms, (B) invest in, acquire and hold cash and Cash Equivalents, (C) endorse negotiable instruments held if for collection in the ordinary course of business or (D) make lease, utility and other similar deposits in the ordinary course of business;
(xii) the Loan Parties and their Restricted Subsidiaries may make Transfers and acquire assets, in each case to the extent permitted when made notwithstanding subsequent changes by Section 5.02(e);
(xiii) any Loan Party and its Restricted Subsidiaries may hold Investments to the extent such Investments reflect an increase in the value of such Investment)Investments already made;
(xiv) Investments (other than Acquisitions) not otherwise specifically permitted herein in an aggregate principal amount not to exceed, provided that with respect as to all Investments made under in reliance on this clause (vii): xiv) outstanding at any time, $7,500,000;
(1xv) Investments by Restricted Subsidiaries that are not Loan Parties which Investments are not otherwise specifically permitted herein, in an aggregate principal amount not to exceed, as to all Investments made in reliance on this clause (xv) outstanding at any newly acquired time $7,500,000; and
(xvi) other Investments (other than Acquisitions) not otherwise specifically permitted above, provided, that, as of the date of any such Investment and after giving effect thereto, the Payment Conditions shall have been satisfied. For purposes of determining compliance with the provisions of this Section 5.02(f), Investments made by a Loan Party or organized any of its Subsidiaries (the “investor”) in any Subsidiary of BRW that are effected pursuant to one or more Investments made contemporaneously or in prompt succession by the investor and/or any of its Subsidiaries shall be deemed one Investment by the investor. Notwithstanding anything to the contrary set forth herein, (a) no Intellectual Property owned by a wholly Loan Party or Restricted Subsidiary or in which Loan Party or Restricted Subsidiary has rights under any applicable license agreement (and if any such license agreement is a JV IP License Agreement or Bonobos IP License Agreement, as such JV IP License Agreement or Bonobos IP License Agreement is in effect on the Effective Date or subsequently amended in accordance with Section 5.02(k)(ii)) shall be the subject of any Investment (including an Investment by any Loan Party of the Equity Interest of any Restricted Subsidiary that owns or holds such Intellectual Property or resulting in such Intellectual Property being owned or controlled by a Subsidiary that is designated as an Unrestricted Subsidiary or other Excluded Subsidiary) and (b) no other asset included in the determination of BRW any Term Loan Borrowing Base or its Subsidiaries; any ABL Borrowing Base shall be the subject of any Investment in or to any non-Loan Party as provided in this Section 5.02(f) unless, in the case of this clause (2b), (i) immediately before and after giving effect theretoto any such Investment, no Default shall have occurred and be continuing and the Payment Conditions are satisfied, (ii) in connection with Investments in respect of assets (in one transaction or would result therefrom; a series of related transactions) having an aggregate fair market value in excess of $5,000,000, at least three (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW or any of its Subsidiaries; (4) immediately after giving effect Business Days prior to the acquisition consummation of a company or business pursuant to this clause (vii)such Investment, BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viii) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default Borrower shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant an updated Borrowing Base Certificate excluding the assets subject to such Investment from the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereofcalculations thereunder, and (IIiii) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at contemporaneously therewith, the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) Borrower shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of made such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to payments as are required by Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi)2.06(b).
Appears in 1 contract
Investments in Other Persons. Make or hold, or permit any of its Restricted Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies except (each of the requirements of one or more of (i) through (xiv) below:following a “Permitted Investment” and collectively, the “Permitted Investments”):
(i) equity (A) Investments by BRW Holdings and its Restricted Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary GuarantorsEffectiveFirst Amendment Signing Date, (B) additional investments in Excluded Entities other than the Mutual Investments by Holdings and its Restricted Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000their Subsidiaries that are Loan Parties, (C) additional investments Investments by Holdings and its Restricted Subsidiaries in Foreign Subsidiaries the Costa Rica Subsidiary in an aggregate amount invested from January 12, 2000 not to exceed (i) for the calendar year ending December 31, 2022, $2,000,0004,000,000, (ii) from January 1, 2023 through December 31, 2023, $6,000,000 plus any unused capacity under the foregoing clause (i), (iii) from January 1, 2024 through December 31, 2024, $8,000,000 plus any unused capacity under the foregoing clauses (i) and (ii), and (iv) for each calendar year thereafter, $10,000,000 plus any unused capacity under the foregoing clauses (i) through (iii), (D) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties, and (D) if the Payment Conditions are satisfied,E) additional investments Investments by the Loan Parties in Cincinnati Xxxx Wireless LLC Subsidiaries that are not Loan Parties (xincluding Subsidiaries that are Excluded Subsidiaries) in an aggregate amount invested from January 12, 2000 the EffectiveFirst Amendment Signing Date not to exceed the greater of (1) $25,000,000 35,000,000 and (y2) other investments resulting in it or its Subsidiaries owning 30.0% of EBITDA for the Spectrum Assetsmost recently completed Measurement Period$20,000,000 at any time outstanding;
(ii) loans and advances to employees in the ordinary course of the business of BRW the Borrower and its Restricted Subsidiaries as presently conducted in an aggregate principal amount not to exceed the greater of (1) $25,000,000 5,000,000 and (2) 4.0% of EBITDA for the most recently completed Measurement Period$7,500,000 at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW loans to directors, officers and its Subsidiaries employees to purchase Equity Interests of Parent (including BCI and its Subsidiaries) in Cash Equivalentsor any direct or indirect holding company of Parent);
(iv) Investments existing on by the date hereof Borrower and described on Schedule 4.01(v) heretoits Restricted Subsidiaries in bank deposits in the ordinary course of business or Cash Equivalents;
(v) Investments by BRW in Hedge Agreements permitted under Section 5.02(b)(i)(Aexisting on the First Amendment Effective Date and described on Schedule 5.02(f);
(vi) Investments consisting of intercompany Debt in Hedge Agreements permitted under Section 5.02(b)(ii5.02(b)(iv);
(vii) (x) the purchase or other Investments made prior to May 1acquisition of all or substantially all of the Equity Interests in any Person that, 2002 and other Investments made on or after May 1upon the consummation thereof, 2002 will be wholly owned (other than Investments directors’ qualifying shares or other nominal issuance in BRW order to comply with local laws) directly by the Borrower or one or more of its wholly owned Restricted Subsidiaries (including, without limitation, as a result of a merger or consolidation) andor (y) the purchase or other acquisition by the Borrower or one or more of its wholly-owned (other than directors’ qualifying shares or other nominal issuance in order to comply with local laws) Restricted Subsidiaries of all or substantially all of the property and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 at assets of any time with Investments valued, Person (collectivelyany such purchase or other acquisition described in the case of each Investment, at the time such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viiiforegoing clause (x) or (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investmenty), provided an “Acquisition”, and any such Acquisition that with respect to Investments made under satisfies each of the following requirements in this clause (vii): (1) any newly acquired ), a “Permitted Acquisition”); provided that, with respect to each purchase or organized Subsidiary of BRW or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in other acquisitionAcquisition made pursuant to this clause (vii):
(A) Such purchase or acquisition shall be in have been approved by the same line board of business directors of the Person (or similar governing body if such Person is not a related line corporation) which is the subject of businesssuch purchase acquisition and such Person shall not have announced that it will oppose such purchase or acquisition or shall not have commenced any action which alleges that such purchase or acquisition shall violate applicable lawsuch Acquisition is not a hostile or contested purchase or acquisition;
(B) as the business of BRW or Loan Parties and any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired domestic Subsidiary shall comply with the requirements of Section 5.01(j)) to the extent required to do so; provided that the aggregate amount of consideration paid in respect of Permitted Acquisitions of Persons that do not become Loan Parties shall not exceed $20,000,000;
(6C) any Investment made under this clause the lines of business of the Person to be (viior the property and assets of which are to be) that is not an acquisition of an Equity Interest so purchased or otherwise acquired shall be made permitted by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(jSection 5.02(c);
(viiiD) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint ventureAcquisition, the consideration for which is in excess of $25,000,000, the Borrower shall have furnished the Administrative Agent with ten (10) Business Days’ prior written notice of such Investment shall be intended purchase or acquisitionAcquisition, and pro forma projected financial statements for the twelve (112) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW month period following such purchase or any of its Subsidiaries; (2) immediately before and acquisitionAcquisition after giving effect theretoto such purchase or acquisitionAcquisition (including balance sheets, no Default cash flows and income states for the acquired Person, individually, and on a Consolidated basis with all Loan Parties), and, in addition to the foregoing, the Borrower shall have occurred furnished the Administrative Agent with a current draft of the acquisition documents (and be continuing final copies thereof as and when executed), a summary of any due diligence undertaken by the Loan Parties in connection with such purchase or would result therefrom; acquisitionAcquisition, and appropriate historical financial statements of the Person which is the subject of such purchase or acquisition;
(3E) any company the legal structure of purchase or business acquired or invested in pursuant to this clause (viii) acquisition shall be in reasonably acceptable to each Agent and the same line of business Required LendersAcquisition;
(or related line of businessF) as the business of BRW or Payment Conditions shall have been satisfied;
(G) (i) with respect to any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with Acquisition to be consummated prior to the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt first anniversary of the joint venture except to Effective Date, or at any time where the extent outstanding principal balance of the Borrowers or such Subsidiary would be permitted under Section 5.02(bObligations is less than $40,000,000, unless each Agent otherwise agrees in writing in its sole discretion, the EBITDA (as reasonably approved by each Agent) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) of the Target shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi)less than zero, and Investments that arose under (ii) if requested by any Agent, the centralized cash management system between BRW and its Subsidiaries Loan Parties shall provide a quality of earnings report (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agentssubstance, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents with results, reasonably acceptable to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative each Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi)).
Appears in 1 contract
Investments in Other Persons. Make or hold, or permit any of its Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) belowPerson other than:
(i) equity Investments by BRW the Parent Borrower and its Subsidiaries (including BCI and its Subsidiariesother than the Sub Borrower) in their respective Subsidiaries outstanding on the date hereof and (A) additional investments Investments in wholly their respective wholly-owned Subsidiaries of BRW that are Subsidiary Guarantors, (B) additional investments in Excluded Entities other than the Mutual Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000, (C) additional investments in Foreign Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $2,000,000, and (D) additional investments in Cincinnati Xxxx Wireless LLC (xExcluded Subsidiaries) in an aggregate amount invested from January 12, 2000 the date hereof not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum Assets2,000,000;
(ii) (A) loans and advances to employees of the Parent Borrower and its Subsidiaries (other than the Sub Borrower) in the ordinary course of the business of BRW and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 2,000,000 at any time outstanding and (B) loans to officers, directors, employees and consultants in connection with the exercise of options granted to such officers, directors, employees and consultants under either the Stock Option Plan or the stock option plan approved by IXnet Holdings on May 20, 1999 (as such approved stock option plan is amended, supplemented or otherwise modified from time to time in accordance with its terms, to the extent permitted in accordance with the Loan Documents) in an aggregate principal amount not to exceed $2,000,000 at any time outstanding; providedPROVIDED, howeverTHAT, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv)secured by the stock purchased upon such exercise;
(iii) Investments by BRW the Parent Borrower and its Subsidiaries (including BCI and its Subsidiariesother than the Sub Borrower) in Cash Equivalents;
(iv) Investments consisting of intercompany Debt permitted under Section 5.02(b)(i)(B) or (ii);
(v) Investments existing on the date hereof and described on Schedule 4.01(v4.01(ee) hereto;
(vvi) Investments by BRW the Parent Borrower in Hedge Agreements permitted under Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt permitted under Section 5.02(b)(ii);
(vii) other Investments made prior to May 1, 2002 by the Parent Borrower and other Investments made on or after May 1, 2002 its Subsidiaries (other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002Sub Borrower) in an aggregate amount invested not to exceed $25,000,000 at any time with Investments valued25,000,000; PROVIDED, in the case of each Investment, at the time such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investment), provided that with respect to Investments made under this clause (vii): ), (1) any newly acquired or organized created Subsidiary of BRW the Parent Borrower or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiariesthereof; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW the Parent Borrower or any of its Subsidiaries; and (4) immediately before and after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW the Parent Borrower shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viii) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi)).to
Appears in 1 contract
Investments in Other Persons. Make or hold, or permit any of its ---------------------------- Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) belowexcept:
(i) equity Investments by BRW the Borrower and its Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary Guarantors, (B) additional investments in Excluded Entities other than the Mutual Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000, (C) additional investments in Foreign Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $2,000,000, and (D) additional investments in Cincinnati Xxxx Wireless LLC (x) in an aggregate amount invested from January 12, 2000 not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum AssetsLoan Parties;
(ii) loans and advances to and guarantees of third-party loans or advances to employees in the ordinary course of the business of BRW the Borrower and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 5 million at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW the Borrower and its Subsidiaries (including BCI and its Subsidiaries) in Cash Equivalents;
(iv) Investments existing on the date hereof and described on Schedule 4.01(v4.01(y) hereto;
(v) Investments by BRW the Borrower in Hedge Agreements permitted under Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt permitted under Section 5.02(b)(ii5.02(b);
(vii) other Investments made prior to May 1, 2002 and other Investments made on or after May 1, 2002 (other than Investments in BRW and the Mutual Subsidiaries made after April 15Alliance Notes, 2002) in an aggregate amount invested not to exceed $25,000,000 at any time with Investments valued, in the case of each Investment, at the time such Investment is made less provided that the aggregate amount of such Investments made under Section 5.02(f)(viii) (it being understood that shall not exceed $250 million at any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investment), provided that with respect to Investments made under this clause (vii): (1) any newly acquired or organized Subsidiary of BRW or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW or any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j)time outstanding;
(viii) Investments other than Investments acquisitions of Equity Interests in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (RSA 6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting acquisitions of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to Equity Interests in the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged DebtAlliances;
(x) Investments consisting the repurchase or redemption of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries Series A Preferred Membership Interests (as defined in the ordinary course Operating Agreement of businessthe VA Alliance) in the VA Alliance;
(xi) Investments consisting acquisition of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to Equity Interests in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted EquityR&B;
(xii) Strategic Telecom Investments in respect of Permitted Obligationsan aggregate principal amount not to exceed $15 million at any time outstanding;
(xiii) (I) Other Strategic Telecom Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings consideration for which agreement contemplates a sale of all or substantially all is solely common stock of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);Borrower having an aggregate purchase price not greater than $50 million; and
(xiv) any An Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be RTFC Certificates in an aggregate principal amount not to exceed $100,000 in aggregate 10 million at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi))time outstanding.
Appears in 1 contract
Investments in Other Persons. Make or hold, or permit any of its Restricted Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies except (each of the requirements of one or more of (i) through (xiv) below:following a “Permitted Investment” and collectively, the “Permitted Investments”):
(i) equity (A) Investments by BRW Holdings and its Restricted Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary GuarantorsSecondThird Amendment EffectiveSigning Date, (B) additional investments in Excluded Entities other than the Mutual Investments by Holdings and its Restricted Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000their Subsidiaries that are Loan Parties, (C) additional investments Investments by Holdings and its Restricted Subsidiaries in Foreign Subsidiaries the Costa Rica Subsidiary in an aggregate amount invested from January 12, 2000 not to exceed (i) for the calendar year ending December 31, 2022, $2,000,0004,000,000, (ii) from January 1, 2023 through December 31, 2023, $6,000,000 plus any unused capacity under the foregoing clause (i), (iii) from January 1, 2024 through December 31, 2024, $8,000,000 plus any unused capacity under the foregoing clauses (i) and (ii), and (iv) for each calendar year thereafter, $10,000,000 plus any unused capacity under the foregoing clauses (i) through (iii), (D) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties, and (D) if the Payment Conditions are satisfied,E) additional investments Investments by the Loan Parties in Cincinnati Xxxx Wireless LLC Subsidiaries that are not Loan Parties (xincluding Subsidiaries that are Excluded Subsidiaries) in an aggregate amount invested from January 12, 2000 the SecondThird Amendment EffectiveSigning Date not to exceed the greater of (1) $25,000,000 35,000,000 and (y2) other investments resulting in it or its Subsidiaries owning 30.0% of EBITDA for the Spectrum Assetsmost recently completed Measurement Period$20,000,000 at any time outstanding;
(ii) loans and advances to employees in the ordinary course of the business of BRW the Borrower and its Restricted Subsidiaries as presently conducted in an aggregate principal amount not to exceed the greater of (1) $25,000,000 5,000,000 and (2) 4.0% of EBITDA for the most recently completed Measurement Period$7,500,000 at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW loans to directors, officers and its Subsidiaries employees to purchase Equity Interests of Parent (including BCI and its Subsidiaries) in Cash Equivalentsor any direct or indirect holding company of Parent);
(iv) Investments existing on by the date hereof Borrower and described on Schedule 4.01(v) heretoits Restricted Subsidiaries in bank deposits in the ordinary course of business or Cash Equivalents;
(v) Investments by BRW in Hedge Agreements permitted under Section 5.02(b)(i)(Aexisting on the SecondThird Amendment Effective Date and described on Schedule 5.02(f);
(vi) Investments consisting of intercompany Debt in Hedge Agreements permitted under Section 5.02(b)(ii5.02(b)(iv);
(vii) (x) the purchase or other Investments made prior to May 1acquisition of all or substantially all of the Equity Interests in any Person that, 2002 and other Investments made on or after May 1upon the consummation thereof, 2002 will be wholly owned (other than Investments directors’ qualifying shares or other nominal issuance in BRW order to comply with local laws) directly by the Borrower or one or more of its wholly owned Restricted Subsidiaries (including, without limitation, as a result of a merger or consolidation) andor (y) the purchase or other acquisition by the Borrower or one or more of its wholly-owned (other than directors’ qualifying shares or other nominal issuance in order to comply with local laws) Restricted Subsidiaries of all or substantially all of the property and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 at assets of any time with Investments valued, Person (collectivelyany such purchase or other acquisition described in the case of each Investment, at the time such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viiiforegoing clause (x) or (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investmenty), provided an “Acquisition”, and any such Acquisition that with respect to Investments made under satisfies each of the following requirements in this clause (vii): (1) any newly acquired ), a “Permitted Acquisition”); provided that, with respect to each purchase or organized Subsidiary of BRW or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in other acquisitionAcquisition made pursuant to this clause (vii):
(A) Such purchase or acquisition shall be in have been approved by the same line board of business directors of the Person (or similar governing body if such Person is not a related line corporation) which is the subject of businesssuch purchase acquisition and such Person shall not have announced that it will oppose such purchase or acquisition or shall not have commenced any action which alleges that such purchase or acquisition shall violate applicable law;such Acquisition is not a hostile or contested purchase or acquisition;
(B) as the business of BRW or Loan Parties and any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired domestic Subsidiary shall comply with the requirements of Section 5.01(j)) to the extent required to do so; provided that the aggregate amount of consideration paid in respect of Permitted Acquisitions of Persons that do not become Loan Parties shall not exceed $20,000,000;
(6C) any Investment made under this clause the lines of business of the Person to be (viior the property and assets of which are to be) that is not an acquisition of an Equity Interest so purchased or otherwise acquired shall be made permitted by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(jSection 5.02(c);
(viiiD) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint ventureAcquisition, the consideration for which is in excess of $25,000,000, the Borrower shall have furnished the Administrative Agent with ten (10) Business Days’ prior written notice of such Investment shall be intended purchase or acquisitionAcquisition, and pro forma projected financial statements for the twelve (112) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW month period following such purchase or any of its Subsidiaries; (2) immediately before and acquisitionAcquisition after giving effect theretoto such purchase or acquisitionAcquisition (including balance sheets, no Default cash flows and income states for the acquired Person, individually, and on a Consolidated basis with all Loan Parties), and, in addition to the foregoing, the Borrower shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to furnished the Administrative Agent pursuant to the terms with a current draft of the Security Agreements, acquisition documents (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender final copies thereof as and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (xwhen executed), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect summary of a payment on any due diligence undertaken by the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding Loan Parties in connection with a Prepackaged Plan such purchase or a sale agreement executed prior to commencement acquisitionAcquisition, and appropriate historical financial statements of the Person which is the subject of such proceedings which agreement contemplates a sale of all purchase or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code)acquisition;
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi)).
Appears in 1 contract
Investments in Other Persons. Make or hold, or permit any of its Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) belowPerson other than:
(ia) equity Investments by BRW and its Subsidiaries (including BCI the Borrower and its Subsidiaries) , if any, in their Subsidiaries outstanding on the date hereof and (A) described on Schedule 7.06, and ------------- additional investments in wholly owned Wholly-Owned Subsidiaries of BRW that are Subsidiary Guarantors, (B) additional investments in Excluded Entities other than the Mutual Subsidiaries Borrower in an aggregate amount invested from January 12, 2000 the date hereof not to exceed $10,000,0001,000,000; provided, (C) additional investments in Foreign Subsidiaries in however, that no more than an aggregate amount invested equal to $1,000,000 -------- ------- shall be made in Investments from January 12the date hereof in Foreign Subsidiaries, 2000 excluding from such limitation the Egerton Intercompany Debt, which Debt shall not be reborrowed after any repayments thereof; and, provided, further, that with -------- ------- respect to exceed $2,000,000Investments in any newly acquired or created Domestic Subsidiary, any such Subsidiary shall become a Guarantor pursuant to the terms of the Guaranty and (D) additional investments in Cincinnati Xxxx Wireless LLC (x) in an aggregate amount invested from January 12, 2000 not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning shall otherwise comply with the Spectrum Assetsprovisions of Section 6.13 hereof;
(iib) loans Loans and advances to officers and other employees in the ordinary course of the business of BRW the Borrower and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 250,000 at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iiic) Investments by BRW the Borrower and its Subsidiaries (including BCI and its Subsidiaries) in Cash Equivalents;
(ivd) Investments by the Borrower and its Subsidiaries, if any, in Hedge Agreements permitted under Section 6.14;
(e) Investments consisting of intercompany Debt permitted under Section 7.02, subject to the limitation on aggregate Investments including intercompany debt set forth in Section 7.06(a);
(f) Investments existing on the date hereof and described on Schedule 4.01(v) 7.06 hereto;
(v) Investments by BRW in Hedge Agreements permitted under Section 5.02(b)(i)(A);
(vig) Investments consisting of intercompany Debt permitted under Section 5.02(b)(ii);
(vii) other Investments made prior to May 1, 2002 and other Investments made on or after May 1, 2002 (other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 at any time with Investments valued, in the case of each Investment, at the time such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investment), provided that with respect to Investments made under this clause (vii): (1) any newly acquired or organized Subsidiary of BRW or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW or any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viii) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries amounts receivable arising in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (xh) Investments in Wireless LLC, (y) Investments consisting the form of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made acquisitions permitted pursuant to Section 5.02(f)(vi))7.04 hereof.
Appears in 1 contract
Investments in Other Persons. Make or hold, or permit any of its Restricted Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) below:except,
(i) equity Investments by BRW the Borrower and its Restricted Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary Guarantors, (B) additional investments in Excluded Entities other than the Mutual Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000, (C) additional investments in Foreign Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $2,000,000, and (D) additional investments in Cincinnati Xxxx Wireless LLC (x) in an aggregate amount invested from January 12, 2000 not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum Assetshereof;
(ii) loans and advances (excluding property consisting of Equity Interests in the Borrower) to employees in the ordinary course of the business of BRW the Borrower and its Restricted Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 15,000,000 at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW the Borrower and its Restricted Subsidiaries (including BCI and its Subsidiaries) in Cash Equivalents;
(iv) Investments existing on the date hereof and described on Schedule 4.01(v4.01(x) hereto;
(v) the Anam Equity Investments;
(vi) Investments by BRW the Borrower in Hedge Agreements permitted under Section 5.02(b)(i)(A);
(vivii) Investments consisting of intercompany Debt (x) permitted under Section 5.02(b)(ii5.02(b)(i)(B) or 5.02(b)(ii)(A) or (y) permitted under 5.02(b)(ii)(B) used for working capital purposes and for Capital Expenditures so long as, immediately after giving effect thereto, the Borrower shall be in compliance with the covenants contained in Sections 5.02(o) and 5.04(a);
(viiviii) other Investments made prior to May 1, 2002 in Subsidiaries and other Investments made on or after May 1, 2002 entities (other than Investments in BRW Anam, Newco and the Mutual Subsidiaries made after April 15, 2002Newco Successor) in an aggregate amount invested not to exceed (i) $25,000,000 at any time with Investments valued125,000,000 (which amount may, notwithstanding the preceding provisions of this clause (viii), include an Investment of up to $50,000,000 in Newco by the Borrower in contemplation of the Fab Transaction) in the case twelve month period commencing on the Effective Date, (ii) $75,000,000 in the twelve month period immediately succeeding the period referred to in clause (i) and (iii) $100,000,000 in any subsequent twelve month period during the term of each Investment, at the time such Investment is made less the aggregate amount of this Agreement (together with any Investments made under Section 5.02(f)(viii) pursuant to subsection (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investmenti), ); provided that with respect to Investments made under this clause (viiviii): (1) any newly acquired or organized Subsidiary of BRW the Borrower or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiariesthereof; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viiviii) shall be in the same line of business (or a related line of business) as the business of BRW the Borrower or any of its SubsidiariesSubsidiaries or lines of business reasonably related or supplementary thereto or reasonable extensions thereof; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (viiviii), BRW the Borrower shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW the Borrower delivered to the Lender Parties demonstrating such compliance; . In addition, in the case of any Investment in, or resulting in the formation or acquisition of, an Unrestricted Subsidiary, (5x) BRW and/or its Subsidiaries and such newly created or acquired Investment in such Unrestricted Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; set forth in Schedule IV hereto and (7y) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viii) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt common equity of the joint venture except Borrower or a portion of the Net Cash Proceeds of the issuance of common equity of the Borrower to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j5.02(g);
(ix) Investments consisting received (a) in satisfaction of debits judgments and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiariesb) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth as payment on a claim made in Section 5.02(f)(xi)connection with any bankruptcy, and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31liquidations, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debtreceivership or other insolvent proceeding;
(x) Investments consisting in (a) negotiable instruments held for collection within the ordinary course of loansbusiness, advances (b) accounts receivable arising in the ordinary course of business (and payables due from suppliers Investments obtained in exchange or customers made by settlement of accounts receivable for which the Borrowers Borrower or their Subsidiaries such Subsidiary has determined collection is not likely) and (c) operating leases, deposits, utility and workers' compensation, performance and other similar deposits arising in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations transfer of the holder thereof under the Loan Documents to which such holder is a party semi-conductor wafer fabrication assets and delivered to the Administrative Agent pursuant to the terms associated exchange of shares made as part of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted EquityFab Transaction;
(xii) Investments made from the proceeds of, or in respect exchange for, the issuance of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all Equity Interests of the assets of BCI and its Subsidiaries Borrower to the extent not required to be prepaid pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix2.06(b)(iii); and
(xvxiii) Investments received by BCI the Borrower or such Restricted Subsidiary in connection with the bankruptcy or reorganization of customers and its Subsidiaries suppliers and in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting settlement of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any timedelinquent obligations of, and (z) other disputes with, customers and suppliers arising in the case ordinary course of CBT, Investments made pursuant to Section 5.02(f)(vi))business.
Appears in 1 contract
Investments in Other Persons. Make or hold, or permit any of its Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) belowexcept:
(i) equity Investments by BRW the Borrower and its Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof hereof, additional equity Investments by the Borrower or its Subsidiaries in Loan Parties and (A) additional equity investments in wholly owned Subsidiaries of BRW that are Subsidiary Guarantors, (B) additional investments not Loan Parties so long as the Borrower is in Excluded Entities other than pro forma compliance with the Mutual Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000, (C) additional investments in Foreign Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $2,000,000, and (D) additional investments in Cincinnati Xxxx Wireless LLC (x) in an aggregate amount invested from January 12, 2000 not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum AssetsFixed Charge Coverage Ratio;
(ii) loans, guarantees of loans and advances to employees or consultants in the ordinary course of the business of BRW the Borrower and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 5,000,000 at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW the Borrower and its Subsidiaries (including BCI and its Subsidiaries) in Cash Equivalents;
(iv) Investments existing on the date hereof and described on Schedule 4.01(v4.01(w) hereto;
(v) Investments by BRW the Borrower in Hedge Agreements permitted under Section 5.02(b)(i)(A5.02(b)(vii);
(vi) Investments consisting of intercompany Debt permitted under Section 5.02(b)(ii5.02(b)(v);
(vii) other Investments made prior to May 1, 2002 and other Investments made on or after May 1, 2002 (other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 at 15,000,000 (which amount shall increase to $30,000,000 when the Borrower becomes Investment Grade), plus the net reduction in any time with such Investments valued, in resulting from distributions on or repayments of such Investments or from the case Net Cash Proceeds or Cash Equivalents from the sale or other disposition of each any such Investment, at ; provided that such reduction does not exceed the time such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investment), and provided that further that, with respect to Investments made under this clause (vii): (1) any newly acquired or organized Subsidiary of BRW the Borrower or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiariesthereof; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW or any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viii) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi)).
Appears in 1 contract
Samples: Credit Agreement (Pacificare Health Systems Inc /De/)
Investments in Other Persons. Make or hold, or permit any of its Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xivx) below:
(i) equity Investments by BRW CBI and its Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary GuarantorsSubsidiaries, (B) additional investments in Excluded Entities other than the Mutual Subsidiaries in an aggregate amount invested from January 12, 2000 the date hereof not to exceed $10,000,000, (C) additional investments in Foreign Subsidiaries in an aggregate amount invested from January 12, 2000 the date hereof not to exceed $2,000,000, 2,000,000 and (D) additional investments in Cincinnati Xxxx Wireless LLC (x) L.L.C. in an aggregate amount invested from January 12, 2000 the date hereof not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum Assets25,000,000;
(ii) loans and advances to employees in the ordinary course of the business of BRW CBI and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 at any time outstandingoutstanding less the aggregate amount of loans and advances that constitute Debt under Section 5.02(b)(iii)(G); provided, however, for purposes of this Section, “"advances” " will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW CBI and its Subsidiaries (including BCI and its Subsidiaries) in Cash Equivalents;
(iv) Investments existing on the date hereof and described on Schedule 4.01(v) hereto;
(v) Investments by BRW CBI in Hedge Agreements permitted under Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt permitted under Section 5.02(b)(ii);
(vii) other Investments made prior to May 1, 2002 and other Investments made on or after May 1, 2002 (other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 10% of Net Tangible Assets at the time of any time determination with Investments valued, in the case of each Investment, at the time such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in Net Tangible Assets or the value of such Investment), provided that with respect to Investments made under this clause (vii): (1) any newly acquired or organized Subsidiary of BRW CBI or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiariesthereof; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW CBI or any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW CBI shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW CBI delivered to the Lender Parties demonstrating such compliance; and (5) BRW the applicable Borrower and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viii) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW CBI or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW CBI or any of its Subsidiaries; (4) BRW the applicable Borrower and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); and (5) neither the Borrowers nor any of their Subsidiaries Subsidiary (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW CBI and its Subsidiaries (including BCI and its Subsidiaries) arising pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the CBI's centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002system; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;and
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi)).
Appears in 1 contract
Investments in Other Persons. Make or hold, or permit any of its Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) below:
(i) equity Investments by BRW CBI and its Subsidiaries (including BCI BRCOM and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW CBI that are Subsidiary Guarantors, (B) additional investments in Excluded Entities other than the Mutual Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000, (C) additional investments in Foreign Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $2,000,000, and (D) additional investments in Cincinnati Xxxx Bxxx Wireless LLC (x) in an aggregate amount invested from January 12, 2000 not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum Assets;
(ii) loans and advances to employees in the ordinary course of the business of BRW CBI and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW CBI and its Subsidiaries (including BCI BRCOM and its Subsidiaries) in Cash Equivalents;
(iv) Investments existing on the date hereof and described on Schedule 4.01(v) hereto;
(v) Investments by BRW CBI in Hedge Agreements permitted under Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt permitted under Section 5.02(b)(ii);
(vii) other Investments made prior to May 1, 2002 and other Investments made on or after May 1, 2002 (other than Investments in BRW CBI and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 at any time with Investments valued, in the case of each Investment, at the time such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investment), provided that with respect to Investments made under this clause (vii): (1) any newly acquired or organized Subsidiary of BRW CBI or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW CBI or its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW CBI or any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW CBI shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW CBI delivered to the Lender Parties demonstrating such compliance; (5) BRW CBI and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW CBI that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI BRCOM or any of its Subsidiaries unless such Investment is a Permitted BCI BRCOM Transaction and BCI BRCOM and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viii) Investments other than Investments in BRW CBI and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW CBI or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW CBI or any of its Subsidiaries; (4) BRW CBI and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI BRCOM unless such Investment is a Permitted BCI BRCOM Transaction and BCI BRCOM and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial BRFS LLC and BRW CBI and its Subsidiaries (including BCI BRCOM and its Subsidiaries) pursuant to the BRW CBI Cash Management System; provided that such Investments between Broadwing Financial BRFS LLC and BRW CBI shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW CBI and its Subsidiaries (including BCI BRCOM and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW CBI and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW CBI to pay (x) BRW CBI Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW CBI that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW CBI and its Subsidiaries in BCI BRCOM and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW CBI and its Subsidiaries in BCI BRCOM and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI BRCOM Transaction so long as at such time no BCI BRCOM Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI BRCOM or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI BRCOM and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI BRCOM and its Subsidiaries in BCI BRCOM and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW CBI Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI BRCOM prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi)).
Appears in 1 contract
Investments in Other Persons. Make or hold, or permit any of its Restricted Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies except (each of the requirements of one or more of (i) through (xiv) below:following a “Permitted Investment” and collectively, the “Permitted Investments”):
(i) equity (A) Investments by BRW Holdings and its Restricted Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary GuarantorsThird Amendment Signing Date, (B) additional investments in Excluded Entities other than the Mutual Investments by Holdings and its Restricted Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000their Subsidiaries that are Loan Parties, (C) additional investments Investments by Holdings and its Restricted Subsidiaries in Foreign Subsidiaries the Costa Rica Subsidiary in an aggregate amount invested from January 12, 2000 not to exceed (i) for the calendar year ending December 31, 2022, $2,000,0004,000,000, (ii) from January 1, 2023 through December 31, 2023, $6,000,000 plus any unused capacity under the foregoing clause (i), (iii) from January 1, 2024 through December 31, 2024, $8,000,000 plus any unused capacity under the foregoing clauses (i) and (ii), and (iv) for each calendar year thereafter, $10,000,000 plus any unused capacity under the foregoing clauses (i) through (iii), (D) additional investments Investments by Subsidiaries of the Borrower that are not Loan Parties in Cincinnati Xxxx Wireless LLC other Subsidiaries that are not Loan Parties, and (xE) additional Investments by the Loan Parties in Subsidiaries that are not Loan Parties (including Subsidiaries that are Excluded Subsidiaries) in an aggregate amount invested from January 12, 2000 the Third Amendment Signing Date not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum Assets20,000,000 at any time outstanding;
(ii) loans and advances to employees in the ordinary course of the business of BRW the Borrower and its Restricted Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 7,500,000 at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW loans to directors, officers and its Subsidiaries employees to purchase Equity Interests of Parent (including BCI and its Subsidiaries) in Cash Equivalentsor any direct or indirect holding company of Parent);
(iv) Investments existing on by the date hereof Borrower and described on Schedule 4.01(v) heretoits Restricted Subsidiaries in bank deposits in the ordinary course of business or Cash Equivalents;
(v) Investments by BRW in Hedge Agreements permitted under Section 5.02(b)(i)(Aexisting on the ThirdFifth Amendment Effective Date and described on Schedule 5.02(f);
(vi) Investments consisting of intercompany Debt in Hedge Agreements permitted under Section 5.02(b)(ii5.02(b)(iv);
(vii) (x) the purchase or other Investments made prior to May 1acquisition of all or substantially all of the Equity Interests in any Person that, 2002 and other Investments made on or after May 1upon the consummation thereof, 2002 will be wholly owned (other than Investments directors’ qualifying shares or other nominal issuance in BRW order to comply with local laws) directly by the Borrower or one or more of its wholly owned Restricted Subsidiaries (including, without limitation, as a result of a merger or consolidation) or (y) the purchase or other acquisition by the Borrower or one or more of its wholly-owned (other than directors’ qualifying shares or other nominal issuance in order to comply with local laws) Restricted Subsidiaries of all or substantially all of the property and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 at assets of any time with Investments valued, Person (any such purchase or other acquisition described in the case foregoing clause (x) or (y), an “Acquisition”, and any such Acquisition that satisfies each of the following requirements in this clause (vii), a “Permitted Acquisition”); provided that, with respect to each Investment, at Acquisition made pursuant to this clause (vii):
(A) such Acquisition is not a hostile or contested purchase or acquisition;
(B) the time Loan Parties and any such Investment is made less newly created or acquired domestic Subsidiary shall comply with the requirements of Section 5.01(j) to the extent required to do so; provided that the aggregate amount of Investments made under Section 5.02(f)(viiiconsideration paid in respect of Permitted Acquisitions of Persons that do not become Loan Parties shall not exceed $20,000,000;
(C) (it being understood that any Investment may continue the lines of business of the Person to be (or the property and assets of which are to be) so purchased or otherwise acquired shall be permitted by Section 5.02(c);
(D) with respect to any Acquisition, the consideration for which is in excess of $25,000,000, the Borrower shall have furnished the Administrative Agent with ten (10) Business Days’ prior written notice of such intended Acquisition, and pro forma projected financial statements for the twelve (12) month period following such Acquisition after giving effect to such Acquisition (including balance sheets, cash flows and income states for the acquired Person, individually, and on a Consolidated basis with all Loan Parties), and, in addition to the foregoing, the Borrower shall have furnished the Administrative Agent with a current draft of the acquisition documents (and final copies thereof as and when executed), a summary of any due diligence undertaken by the Loan Parties in connection with such Acquisition, and appropriate historical financial statements of the Person which is the subject of such Acquisition;
(E) the Payment Conditions shall have been satisfied; and
(F) the Borrower shall have delivered to the Administrative Agent, on behalf of the Lenders, at least two (2) Business Days (or such shorter period as the Administrative Agent may agree in its sole discretion) prior to the date on which any such Acquisition is to be consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in this clause (vii) have been satisfied or will be satisfied in all respects on or prior to the consummation of such Acquisition;
(viii) Investments (A) received in satisfaction or partial satisfaction of accounts from financially troubled Account Debtors (whether in connection with a foreclosure, bankruptcy, workout or otherwise) and (B) consisting of deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of the Borrower and its Restricted Subsidiaries;
(ix) guaranties in the ordinary course of business of obligations owed to or of landlords, suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries or otherwise permitted hereunder;
(x) the JV IP Transactions contemplated under the JV IP Transaction Documents (as in effect on the Fourth Amendment Effective Date) to be consummated on the Fourth Amendment Effective Date, to the extent consummated on the Fourth Amendment Effective Date in accordance with such JV IP Transaction Documents;
(xi) the Loan Parties and their Restricted Subsidiaries may (A) acquire and hold accounts receivable owing to any of them if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms, (B) invest in, acquire and hold cash and Cash Equivalents, (C) endorse negotiable instruments held if for collection in the ordinary course of business or (D) make lease, utility and other similar deposits in the ordinary course of business;
(xii) the Loan Parties and their Restricted Subsidiaries may make Transfers and acquire assets, in each case to the extent permitted when made notwithstanding subsequent changes by Section 5.02(e);
(xiii) any Loan Party and its Restricted Subsidiaries may hold Investments to the extent such Investments reflect an increase in the value of such Investment)Investments already made;
(xiv) Investments (other than Acquisitions) not otherwise specifically permitted herein in an aggregate principal amount not to exceed, provided that with respect as to all Investments made under in reliance on this clause (vii): xiv) outstanding at any time, $7,500,000;
(1xv) Investments by Restricted Subsidiaries that are not Loan Parties, which Investments are not otherwise specifically permitted herein, in an aggregate principal amount not to exceed, as to all Investments made in reliance on this clause (xv) outstanding at any newly acquired time, $7,500,000; and
(xvi) other Investments (other than Acquisitions) not otherwise specifically permitted above, provided, that, as of the date of any such Investment and after giving effect thereto, the Payment Conditions shall have been satisfied. For purposes of determining compliance with the provisions of this Section 5.02(f), Investments made by a Loan Party or organized any of its Subsidiaries (the “investor”) in any Subsidiary of BRW that are effected pursuant to one or more Investments made contemporaneously or in prompt succession by the investor and/or any of its Subsidiaries shall be deemed one Investment by the investor. Notwithstanding anything to the contrary set forth herein, (a) no Intellectual Property owned by a wholly Loan Party or Restricted Subsidiary or in which Loan Party or Restricted Subsidiary has rights under any applicable license agreement (and if any such license agreement is a JV IP License Agreement or Bonobos IP License Agreement, as such JV IP License Agreement or Bonobos IP License Agreement is in effect on the FourthFifth Amendment Effective Date or subsequently amended in accordance with Section 5.02(k)(ii)) shall be the subject of any Investment (including an Investment by any Loan Party of the Equity Interest of any Restricted Subsidiary that owns or holds such Intellectual Property or resulting in such Intellectual Property being owned or controlled by a Subsidiary that is designated as an Unrestricted Subsidiary or other Excluded Subsidiary) and (b) no other asset included in the determination of BRW any Borrowing Base or its Subsidiaries; Term Borrowing Base shall be the subject of any Investment in or to any non-Loan Party as provided in this Section 5.02(f) unless, in the case of this clause (2b), (i) immediately before and after giving effect theretoto any such Investment, no Default shall have occurred and be continuing and the Payment Conditions are satisfied, (ii) in connection with Investments in respect of assets (in one transaction or would result therefrom; a series of related transactions) having an aggregate fair market value in excess of $5,000,000, at least three (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW or any of its Subsidiaries; (4) immediately after giving effect Business Days prior to the acquisition consummation of a company or business pursuant to this clause (vii)such Investment, BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viii) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default Borrower shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant an updated Borrowing Base Certificate and an updated Term Borrowing Base Certificate excluding the assets subject to such Investment from the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereofcalculations thereunder, and (IIiii) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at contemporaneously therewith, the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) Borrower shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of made such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to payments as are required by Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi)2.06(b).
Appears in 1 contract
Investments in Other Persons. Make or hold, or permit any of its Restricted Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) belowexcept:
(i) equity (A) Investments by BRW the Parent and its Restricted Subsidiaries (including BCI and its Subsidiaries) in their Restricted Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary Guarantorshereof, (B) additional investments Investments by the Parent and its Restricted Subsidiaries in Loan Parties, (C) additional Investments by Restricted Subsidiaries of the Company that are not Loan Parties in other Restricted Subsidiaries that are not Loan Parties, (D) additional Investments by the Loan Parties in Restricted Subsidiaries that are not Loan Parties (including Subsidiaries that are Excluded Entities other than Subsidiaries) in an aggregate amount (net of any Investment Credit) invested from the Mutual date hereof not to exceed the greater of (1) $20,000,000 and (2) 10% of Consolidated total assets at the time such Investment is made, and (E) Investments in Unrestricted Subsidiaries in an aggregate amount invested from January 12, 2000 for such Investments (together with the aggregate amount of Investments made pursuant to clause (D) of this Section 5.02(f)(i) and net of any Investment Credit) not to exceed the greater of (1) $10,000,000, (C) additional investments in Foreign Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $2,000,000, 20,000,000 and (D2) additional investments in Cincinnati Xxxx Wireless LLC (x) in an aggregate amount invested from January 12, 2000 not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning 10% of Consolidated total assets at the Spectrum Assetstime such Investment is made;
(ii) loans and advances to employees in the ordinary course of the business of BRW the Company and its Restricted Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 2,000,000 at any time outstanding; provided;
(iii) loans to directors, howeverofficers and employees to purchase Equity Interests of Parent, for purposes of this Section, “advances” will in an aggregate amount not restrict advances for travel expenses to employees advanced exceed $2,000,000 at any time outstanding;
(iv) Investments by the Company and repaid its Subsidiaries in bank deposits in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW and its Subsidiaries (including BCI and its Subsidiaries) in business or Cash Equivalents;
(ivv) Investments existing on the date hereof and described on Schedule 4.01(v4.01(y) heretoto the Disclosure Letter;
(vvi) Investments by BRW in Hedge Agreements permitted under Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt permitted under Section 5.02(b)(ii5.02(b)(iv);
(vii) the purchase or other Investments made prior to May 1acquisition of all or substantially all of the Equity Interests in any Person that, 2002 and other Investments made on upon the consummation thereof, will be wholly owned directly by the Company or after May 1one or more of its wholly owned Subsidiaries (including, 2002 (other than Investments in BRW without limitation, as a result of a merger or consolidation) and the Mutual purchase or other acquisition by the Company or one or more of its wholly-owned Restricted Subsidiaries made after April 15of all or substantially all of the property and assets of any Person (collectively, 2002) in an aggregate amount invested not to exceed $25,000,000 at any time with Investments valued“Acquisition”); provided that, in the case of each Investment, at the time such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investment), provided that with respect to Investments each purchase or other acquisition made under this clause (vii): (1) any newly acquired or organized Subsidiary of BRW or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (vii):
(A) shall be in the same line of business (or a related line of business) as the business of BRW or Loan Parties and any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of Section 5.01(j);
(viiiB) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount lines of $50,000,000 for any investments valued as business of the date Person to be (or the property and assets of which are to be) so purchased or otherwise acquired shall be permitted by Section 5.02(c);
(C) such Investment purchase or other acquisition shall not include or result in any contingent liabilities that could reasonably be expected to have a Material Adverse Effect on the Company and its Restricted Subsidiaries, taken as a whole (as determined in good faith by the board of directors (or the persons performing similar functions) of the Company, if the board of directors is madeotherwise approving such transaction, or, in each other case, by the Responsible Officer of the Company);
(D) the total cash consideration (including, without limitation, joint ventures; providedall indemnities, howeverearnouts and other contingent payment obligations to, that and the aggregate amounts paid or to be paid under noncompete, consulting and other affiliated agreements with, the sellers of such Person or assets, and all assumptions of debt, liabilities and other obligations in connection therewith permitted by Section 5.02(b)(ix)) paid by or on behalf of the Company and its Subsidiaries for any such purchase or other acquisition, shall not exceed $20,000,000 for any single purchase or acquisition, and when aggregated with respect the total cash and noncash consideration paid by or on behalf of the Company and its Restricted Subsidiaries for all other purchases and other acquisitions made by the Company and its Restricted Subsidiaries pursuant to this clause (vii), shall not exceed the greater of $50,000,000 or 20% of Consolidated total assets at the time any joint venture, such Investment shall be purchase or other acquisition is made;
(1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and immediately after giving effect theretoto any such purchase or other acquisition, no Event of Default shall have occurred and be continuing and (2) immediately after giving effect to such purchase or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) other acquisition, the Parent and its Restricted Subsidiaries shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply pro forma compliance with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt all of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions covenants set forth in Section 5.02(f)(xi)5.04, and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior such compliance to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
be determined (x) Investments consisting as of loans, advances and payables due from suppliers the last day of the most recently ended fiscal quarter as though such purchase or customers made other acquisition had been consummated as of the first day of the four fiscal quarter period then ended; or (y) in such other manner as may be reasonably determined by the Borrowers Administrative Agent; and
(F) the Company shall have delivered to the Administrative Agent, on behalf of the Lender Parties, at least five Business Days prior to the date on which any such purchase or their Subsidiaries other acquisition is to be consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in this clause (vii) have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition.
(viii) Investments in the nature of lease, utility, governmental, performance or similar deposits in the ordinary course of business;
(xiix) Investments (A) received in satisfaction or partial satisfaction of accounts from financially troubled account debtors (whether in connection with a foreclosure, bankruptcy, workout or otherwise) and (B) consisting of deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of Company and its Restricted Subsidiaries;
(x) Investments consisting of prepaid royalties or expenses or notes receivable arising from the sale or lease of goods or services in the ordinary course of business, or non-cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to consideration received in clauses (iv) and (v) connection with a sale of Section 5.02(g) and (z) debt service for Debt of BRW that is assets permitted under this Agreement; provided that Section 5.02(e);
(1xi) such advances are evidenced by promissory notesguaranties in the ordinary course of business of obligations owed to or of landlords, in form suppliers, customers, franchisees and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations licensees of the holder thereof under the Loan Documents to which such holder is a party Borrower and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) aboveits Restricted Subsidiaries; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;and
(xii) other Investments in respect an aggregate amount not to exceed at any time the sum of Permitted Obligations;
(xiiiA) (I) Investments by BRW the greater of $20,000,000 and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that 10% of Consolidated total assets at the time createdof making such Investment and (B) net proceeds received from Investments permitted under this Section 5.02(f). For purposes of determining compliance with the provisions of this Section 5.02(f), incurred, assumed, Investments made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI by Company or any of its Restricted Subsidiaries (other than a proceeding the “investor”) in connection with a Prepackaged Plan any Restricted Subsidiary that are effected pursuant to one or a sale agreement executed prior to commencement more Investments made contemporaneously or in prompt succession by the investor and/or any of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to deemed one Investment by the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi))investor.
Appears in 1 contract
Samples: First Lien Credit Agreement (Metrologic Instruments Inc)
Investments in Other Persons. Make or hold, or permit any of its ---------------------------- Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) belowPerson other than:
(i) equity Investments by BRW and the Borrower or any of its Subsidiaries (including BCI and its Subsidiaries) in their Subsidiaries outstanding on the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary Guarantors, (B) additional investments in Excluded Entities other than the Mutual Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $10,000,000, (C) additional investments in Foreign Subsidiaries in an aggregate amount invested from January 12, 2000 not to exceed $2,000,000, and (D) additional investments in Cincinnati Xxxx Wireless LLC (x) in an aggregate amount invested from January 12, 2000 not to exceed $25,000,000 Domestic Subsidiaries and (y) in Wholly-Owned Foreign Subsidiaries not to exceed in the aggregate $15,000,000 provided, however, that the aggregate of all -------- ------- outstanding unsecured Debt permitted pursuant to Section 5.02(b)(ii)(y) and Investments from the Initial Funding Date by the Borrower or any Domestic Subsidiary of the Borrower in any Person organized under the laws of any jurisdiction other investments resulting than the United States of America or any state thereof, shall not exceed (A) $10,000,000 in it any Fiscal Year or its Subsidiaries owning (B) in any event, $15,000,000 in the Spectrum Assets;aggregate outstanding at any time. 104
(ii) loans Loans and advances to directors, officers and other employees in the ordinary course of the business of BRW the Borrower and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $25,000,000 750,000 at any time outstanding; provided, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such loans and advances are made in compliance with Section 5.01(t)(iv);
(iii) Investments by BRW the Borrower and its Subsidiaries (including BCI and its Subsidiaries) in Cash Equivalents;
(iv) Investments existing on by the date hereof Borrower and described on Schedule 4.01(vits Subsidiaries in Bank Hedge Agreements; provided that such Investments shall not exceed at any one time eighty percent (80%) heretoof the Revolving Credit Commitment;
(v) Investments by BRW in Hedge Agreements permitted under Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt permitted under Section 5.02(b)(ii);
(vii) other Investments made prior to May 1, 2002 and other Investments made on or after May 1, 2002 (other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002) in an aggregate amount invested not to exceed $25,000,000 at any time with Investments valued, in the case of each Investment, at the time such Investment is made less the aggregate amount of Investments made under Section 5.02(f)(viii) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value of such Investment), provided that with respect to Investments made under this clause (vii): (1) any newly acquired or organized Subsidiary of BRW or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (vii) shall be in the same line of business (or a related line of business) as the business of BRW or any of its Subsidiaries; (4) immediately after giving effect to the acquisition of a company or business pursuant to this clause (vii), BRW shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and as though such acquisition had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of the Chief Financial Officer of BRW delivered to the Lender Parties demonstrating such compliance; (5) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viii) Investments other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 in an aggregate amount of $50,000,000 for any investments valued as of the date such Investment is made, including, without limitation, joint ventures; provided, however, that with respect to any joint venture, such Investment shall be (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6) any company or business acquired or invested in pursuant to this clause (viii) shall not be or become a Subsidiary of BCI unless such Investment is a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(ixvi) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant to the BRW Cash Management System; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries accounts receivable arising in the ordinary course of business;
(xi) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents to which such holder is a party and delivered to the Administrative Agent pursuant to the terms of the Security Agreements, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agent, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereof, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 of the Bankruptcy Code);
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xvvii) Investments by BCI in the form of Permitted Acquisitions; and
(viii) Investments in related businesses which do not exceed $2,500,000 in the aggregate at any one time outstanding for the Borrower and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi))a Consolidated Basis.
Appears in 1 contract
Samples: Credit Agreement (Unidigital Inc)
Investments in Other Persons. Make or hold, or permit any of its Restricted Subsidiaries to make or hold, any Investment in any Person, unless such investment satisfies the requirements of one or more of (i) through (xiv) belowPerson other than:
(i) equity Investments by BRW existing on December 31, 2002 and its Subsidiaries (including BCI described on Schedule 5.02(e), and its Subsidiaries) in their Subsidiaries outstanding on any extensions, renewals or reinvestments thereof, so long as the date hereof and (A) additional investments in wholly owned Subsidiaries of BRW that are Subsidiary Guarantors, (B) additional investments in Excluded Entities other than the Mutual Subsidiaries in an aggregate amount invested from January 12, 2000 of all Investments pursuant to this clause (measured by the amount actually invested) is not to exceed $10,000,000, (C) additional investments in Foreign Subsidiaries in an aggregate increased at any time above the amount invested from January 12, 2000 not to exceed $2,000,000, and (D) additional investments in Cincinnati Xxxx Wireless LLC (x) in an aggregate amount invested from January 12, 2000 not to exceed $25,000,000 and (y) other investments resulting in it or its Subsidiaries owning the Spectrum Assetsof such Investments existing on such date;
(ii) loans and advances to employees in the ordinary course of the business of BRW (A) existing on December 31, 2002, (B) related to travel and its Subsidiaries as presently conducted relocation expenses in an aggregate principal amount not to exceed $25,000,000 at 250,000 in any time outstanding; providedFiscal Year, however, for purposes of this Section, “advances” will not restrict advances for travel expenses to employees advanced and repaid in the ordinary course of business; provided further that such (C) other loans and advances are made to employees for the purchase of capital stock of the U.S. Borrower in compliance with Section 5.01(t)(iv)an aggregate amount not to exceed $750,000 in any Fiscal Year;
(iii) Investments by BRW the Borrowers and its their Restricted Subsidiaries (including BCI and its Subsidiaries) in Cash Equivalents;
(iv) Investments existing on by the date hereof and described on Schedule 4.01(v) hereto;
(v) Investments by BRW Borrowers in Hedge Agreements permitted under Section 5.02(b)(i)(A5.02(b)(i)(B);
(viv) Investments consisting of intercompany Debt permitted under Section 5.02(b)(ii)) and other Investments permitted under this Section 5.02(e) by the Borrowers and their Restricted Subsidiaries in Persons that are Restricted Subsidiaries at the time of the making of such Investments;
(vi) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business;
(vii) Investments constituting seller notes or other Investments made prior to May 1similar instruments or any other non-cash proceeds of sales, 2002 transfers and other dispositions of assets in connection with the sale or other disposition of the Light Wheels Facility;
(viii) In the case of the U.S. Borrower, Investments made on or after May 1, 2002 required pursuant to Section 5.01(l);
(other than ix) (A) Investments in BRW Restricted Subsidiaries and the Mutual Subsidiaries made after April 15, 2002(B) Investments in other Persons in an aggregate amount invested for all such Investments not to exceed $25,000,000 at any time with Investments valued, in the case 140,000,000; provided that (x) no more than $20,000,000 of each Investment, at the time such Investment is made less the aggregate amount of such Investments made under is funded with (1) internally generated funds and cash on the balance sheet of the U.S. Borrower and its Restricted Subsidiaries plus (2) Advances hereunder, (y) any Debt used to make such Investments shall not exceed $50,000,000 as set forth in Section 5.02(f)(viii5.02(b)(iii)(F), and (z) (it being understood that any Investment may continue to be held if permitted when made notwithstanding subsequent changes in the value making of such Investment), Investments shall not increase the then existing Leverage Ratio; provided further that with respect to all such Investments made under this clause (vii): (1) any newly acquired or organized Subsidiary of BRW or any of its Subsidiaries shall be a wholly owned Subsidiary of BRW or its Subsidiaries; (2A) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3B) any company or business acquired or invested in pursuant to this clause (vii) shall be in comply with the same line requirements of business (or a related line of business) as the business of BRW or any of its SubsidiariesSection 5.01(e); (4C) immediately after giving effect to such Investment or the acquisition of a company or business pursuant to this clause (vii)clause, BRW the U.S. Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the relevant financial statements most recently delivered to the Lender Parties pursuant to Section 5.03 and 5.03(b)(ii) or (c), as though such Investment or acquisition had occurred at the beginning of the four-quarter period Measurement Period covered thereby, as evidenced by a certificate of the Chief Financial Officer chief financial officer of BRW delivered the U.S. Borrower furnished to the Lender Parties demonstrating such compliance; and (5D) BRW and/or its the Leverage Ratio, calculated based on the relevant financial statements delivered pursuant to Section 5.03(b)(ii) or (c), as though such Investment or acquisition had occurred at the beginning of the Measurement Period covered thereby, as evidenced by a certificate of the chief financial officer of the U.S. Borrower furnished to the Lender Parties demonstrating such compliance, in each case shall be less than 4.50:1.00; and
(x) (A) Investments in Restricted Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j); (6) any Investment made under this clause (vii) that is not an acquisition of an Equity Interest shall be made by a Subsidiary of BRW that is a Subsidiary Guarantor; and (7) no Investment made under this clause (vii) may be made in BCI or any of its Subsidiaries unless such Investment is a Permitted BCI Transaction and BCI and/or such Subsidiary and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(j);
(viiiB) Investments in other than Investments in BRW and the Mutual Subsidiaries made after April 15, 2002 Persons in an aggregate amount of for all such Investments not to exceed $50,000,000 for any investments valued as 25,000,000; provided that (x) no more than $5,000,000 of the date aggregate amount of such Investments is funded with (1) internally generated funds and cash on the balance sheet of the U.S. Borrower and its Restricted Subsidiaries plus (2) Advances hereunder, (y) any Debt used to make such Investments shall not exceed $10,000,000 as set forth in Section 5.02(b)(iii)(I); provided that, if such Debt is secured by Liens permitted under Section 5.02(a)(x), then such Liens shall not extend to any assets other than the property or stock of the Person or Persons with respect to which the related Investment is was made, including, without limitation, joint venturesand (z) the making of such Investments shall not increase the then existing Leverage Ratio; provided, however, provided further that with respect to any joint venture, all such Investment shall be Investments (1) made through a newly organized bankruptcy remote special purpose vehicle, wholly owned by BRW or any of its Subsidiaries; (2A) immediately before and after giving effect thereto, no Default shall have occurred and be continuing or would result therefrom; (3B) any company or business acquired or invested in pursuant to this clause (viii) shall be in the same line of business (or related line of business) as the business of BRW or any of its Subsidiaries; (4) BRW and/or its Subsidiaries and such newly created or acquired Subsidiary shall comply with the requirements of 5.01(jSection 5.01(e); (5) neither the Borrowers nor any of their Subsidiaries (other than such special purpose vehicle) shall become liable for the Debt of the joint venture except to the extent the Borrowers or such Subsidiary would be permitted under Section 5.02(b) to incur such Debt; and (6C) any immediately after giving effect to such Investment or the acquisition of a company or business acquired or invested in pursuant to this clause clause, the U.S. Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the covenants contained in Section 5.04, calculated based on the relevant financial statements delivered pursuant to Section 5.03(b)(ii) or (viii) shall not be or become a Subsidiary of BCI unless c), as though such Investment is or acquisition had occurred at the beginning of the Measurement Period covered thereby, as evidenced by a Permitted BCI Transaction and BCI and such newly created or acquired Subsidiary shall comply with certificate of the requirements chief financial officer of 5.01(j);
(ix) Investments consisting of debits and credits between Broadwing Financial LLC and BRW and its Subsidiaries (including BCI and its Subsidiaries) pursuant the U.S. Borrower furnished to the BRW Cash Management SystemLender Parties demonstrating such compliance; provided that such Investments between Broadwing Financial LLC and BRW shall be subject to the restrictions set forth in Section 5.02(f)(xi), and Investments that arose under the centralized cash management system between BRW and its Subsidiaries (including BCI and its Subsidiaries) prior to May 31, 2002; provided further that all such Investments made by BRW and each Subsidiary Guarantor are evidenced by promissory notes and constitute Pledged Debt;
(x) Investments consisting of loans, advances and payables due from suppliers or customers made by the Borrowers or their Subsidiaries amounts appearing in the ordinary course second and the third lines of business;
(xithis Section 5.02(e)(x) Investments consisting of cash advances to BRW to pay (x) BRW Administrative Expenses, (y) dividends and payments referred to in clauses (iv) and (v) of Section 5.02(g) and (z) debt service for Debt of BRW that is permitted under this Agreement; provided that (1) such advances are evidenced by promissory notes, in form and substance satisfactory to the Agents, and such promissory notes shall be pledged as security for the Obligations of the holder thereof under the Loan Documents increased to which such holder is a party $50,000,000 and delivered to the Administrative Agent pursuant to the terms of the Security Agreements$10,000,000, (2) such advances are not made earlier than 1 Business Day before the day that the obligations are to be paid and (3) the proceeds of such advances are either deposited directly to a deposit account maintained with the Administrative Agent or another Lender and in which the Administrative Agentrespectively, for the benefit of the Lenders, has a security interest pursuant to the terms of the Security Agreements or applied directly for a purpose referred to in clause (x), (y) or (z) above; provided further, however, that if a Blocking Event has occurred and is continuing, no such Investments shall be made in respect of a payment on the New Notes or the Other Permitted Equity;
(xii) Investments in respect of Permitted Obligations;
(xiii) (I) Investments by BRW and its Subsidiaries in BCI and its Subsidiaries outstanding on the date hereofof delivery, and (II) each additional Investment by BRW and its Subsidiaries in BCI and its Subsidiaries that at the time created, incurred, assumed, made or otherwise arising constituted or resulted from a Permitted BCI Transaction so long as at such time no BCI Event of Default specified under Section 7.03(b) shall have occurred with respect to BCI or any of its Subsidiaries (other than a proceeding in connection with a Prepackaged Plan or a sale agreement executed prior to commencement of such proceedings which agreement contemplates a sale of all or substantially all of the assets of BCI and its Subsidiaries pursuant to Section 363 5.03(b)(ii), of the Bankruptcy Code)quarterly financial statements showing the Leverage Ratio as less than 5.00:1.00;
(xiv) any Investment acquired as consideration received in respect of or as a result of any transaction under Section 5.02(e)(ix); and
(xv) Investments by BCI and its Subsidiaries in BCI and its Subsidiaries; provided that no Investments shall be made on or after April 15, 2002 in Excluded Entities other than (x) Investments in Wireless LLC, (y) Investments consisting of debits and credits arising pursuant to the BRW Cash Management System (including such Investments made by Excluded Entities that are Subsidiaries of BCI prior to the date that is 30 days after the Effective Date); provided that all such cash advances made to such Excluded Entities constitute Pledged Debt; provided further that all such Investments made to the Mutual Subsidiaries be in an amount not to exceed $100,000 in aggregate at any time, and (z) in the case of CBT, Investments made pursuant to Section 5.02(f)(vi)).
Appears in 1 contract
Samples: Credit Agreement (Accuride Corp)
