Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, not including receivables, deposits or prepaid items, except: (a) Permitted Investments; (b) investments in the capital stock of new or existing Subsidiaries and intercompany loans between or among the Borrower and/or its Subsidiaries; (c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Equity Percentage for that Unconsolidated Affiliate), and in other real estate investment trusts (at market value); (d) loans, advances and extensions of credit to Affiliates of the Borrower that are Mortgage Notes or are used to purchase TIF obligations; (e) loans, advances and extensions of credit that are not included in clause (d); (f) undeveloped land; (g) Real Property; (h) capital stock, obligations or securities received in settlement of debts (created in the ordinary course of business) owing to the Borrower or any Subsidiary; and (i) mergers, consolidations and other transactions permitted under Section 6.02, so long as same do not cause the Borrower to be in violation of any provision of this Section 6.03. The loans and investments described above may be purchased or acquired, directly or indirectly, through partnerships, joint ventures, or otherwise.
Appears in 4 contracts
Samples: Credit Agreement (Weingarten Realty Investors /Tx/), Credit Agreement (Weingarten Realty Investors /Tx/), Term Loan Agreement (Weingarten Realty Investors /Tx/)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment (including by way of Guarantees) or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unitunit (whether through purchase of assets, not including receivables, deposits merger or prepaid itemsotherwise), except:
(a) Permitted Investmentsinvestments in cash and Cash Equivalents;
(b) investments in existence on the capital stock of new or existing Subsidiaries Closing Date and intercompany loans between or among described in Schedule 8.04 and amendments, extensions and renewals thereof that do not increase the Borrower and/or its Subsidiariesamount thereof and investments reflected on Schedule 6.01;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Equity Percentage for that Unconsolidated Affiliate), operating deposit accounts with depository institutions and in other real estate investment trusts (at market value)ordinary course cash management;
(d) loans, advances and extensions of credit to Affiliates of the Borrower that are Mortgage Notes investments received in connection with a disposition permitted under Section 8.05(h) or are used to purchase TIF obligations(i);
(e) loans, advances purchases of inventory and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations other assets to be sold or securities received in settlement of debts (created used in the ordinary course of business;
(f) owing investments by (i) any Loan Party in any Loan Party, (ii) any Restricted Subsidiary that is not a Loan Party in the Borrower or any other Restricted Subsidiary and (iii) any Loan Party in any Restricted Subsidiary that is not a Loan Party; provided that the aggregate principal amount of investments outstanding pursuant to this clause (iii) shall not exceed the greater of $150,000,000 and 7.0% of Consolidated Total Assets (as shown on or determined in accordance with the most recent financial statements of the Borrower delivered pursuant to Section 7.01(a) or (b) prior to the date of the making thereof) at any time outstanding;
(g) loans and advances to employees in the ordinary course of business not exceeding $10,000,000 in the aggregate;
(h) investments in the form of Swap Contracts permitted by Section 8.01(h);
(i) deposits to secure bids, tenders, utilities, vendors, leases, licenses, statutory obligations, surety and appeal bonds, performance bonds and other deposits of like nature arising in the ordinary course of business;
(j) investments by any Receivables Financing SPC, the Borrower or any Restricted Subsidiary in a Receivables Financing SPC in each case made in connection with a Permitted Receivables Financing, and loans permitted by the applicable Permitted Receivables Financing that are made by the Borrower or a Restricted Subsidiary to a Receivables Financing SPC or by a Receivables Financing SPC to the Borrower or a Restricted Subsidiary in connection therewith;
(k) the Farm Credit Equities and any Subsidiaryother stock or securities of, or investments in, a Farm Credit Lender or its investment services or programs;
(l) investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors or other disputes with customers or suppliers and investments consisting of the prepayment of suppliers and service providers on customary terms in the ordinary course of business;
(m) Guarantees of Indebtedness permitted by Section 8.01 and of other obligations otherwise permitted hereunder;
(n) investments in prepaid expenses, utility and workers’ compensation, performance and other similar deposits, each as entered into in the ordinary course of business;
(o) investments consisting of the licensing, sublicensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(p) investments to the extent made with (i) Qualified Equity Interests of the Borrower or (ii) the cash proceeds of any Equity Issuance by the Borrower so long as such investment is consummated within 90 days of such Equity Issuance (provided that such cash proceeds shall not be included in the Available Amount);
(q) additional investments in an aggregate amount not to exceed the greater of $250,000,000 and 11.5% of Consolidated Total Assets (as shown on or determined in accordance with the most recent financial statements of the Borrower delivered pursuant to Section 7.01(a) or (b) prior to the date of the making thereof) at any time outstanding;
(r) the Transactions and Permitted Acquisitions;
(s) other investments so long as, on a Pro Forma Basis immediately after the making of any such investment, the Consolidated Net Leverage Ratio does not exceed 3.75 to 1.00;
(t) subject to the absence of any continuing Event of Default and compliance by the Borrower on a Pro Forma Basis with the covenants set forth in Section 8.11 (each in accordance with Section 1.10, if applicable), investments from the Available Amount; and
(iu) mergersinvestments made during a Collateral Suspension Period. For purposes of covenant compliance, consolidations and the amount of any investment shall be the amount actually invested (with respect to any investment made other transactions permitted under Section 6.02than in the form of cash or Cash Equivalents, so long valued at the fair market value thereof (as same do not cause reasonably determined by the Borrower to be in violation good faith) at the time of the making thereof), without adjustment for subsequent increases or decreases in the value of such investment, less any amount repaid, returned, distributed or otherwise received in respect of any provision investment, in each case, in cash, and the amount of any investment constituting a Guarantee shall be determined as stated in the definition of “Guarantee.” Any investment in any Person other than a Loan Party that is otherwise permitted by this Section 6.03. The loans and investments described above 8.04 may be purchased made through intermediate investments in Restricted Subsidiaries that are not Loan Parties and such intermediate investments shall be disregarded for purposes of determining the outstanding amount of investments pursuant to any clause set forth above. For purposes of determining compliance with this Section 8.04, if an investment meets, in whole or acquiredin part, directly the criteria of one or indirectlymore of the categories of investments (or any portion thereof) permitted in this Section 8.04, through partnershipsthe Borrower may, joint venturesin its sole discretion, classify or otherwisedivide such investment (or any portion thereof) in any manner that complies with this Section 8.04 and will be entitled to only include the amount and type of such investment (or any portion thereof) in one of the above clauses and such investment will be treated as being incurred pursuant to only such clause or clauses (or any portion thereof).
Appears in 4 contracts
Samples: Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unitunit (whether through purchase of assets, not including receivables, deposits merger or prepaid itemsotherwise), except:
(a) cash, Cash Equivalents and Permitted InvestmentsAcquisitions;
(b) investments in existence on the capital stock of new or existing Subsidiaries Closing Date and intercompany loans between or among the Borrower and/or its Subsidiariesdescribed in Schedule 8.04;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Equity Percentage for that Unconsolidated Affiliate), and in other real estate investment trusts (at market value)operating deposit accounts with depository institutions;
(d) loans, advances and extensions of credit to Affiliates of the Borrower that are Mortgage Notes or are used to purchase TIF obligationsinvestments received in connection with a disposition permitted under Section 8.05;
(e) loans, advances purchases of inventory and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations other assets to be sold or securities received in settlement of debts (created used in the ordinary course of business;
(f) owing investments by any Loan Party or any Restricted Subsidiary in any Loan Party or any Restricted Subsidiary (including, but not limited to, loans from a Restricted Subsidiary to another Restricted Subsidiary);
(g) investments by the Borrower and its Restricted Subsidiaries in the Equity Interests of their Subsidiaries to the extent outstanding as of the Closing Date;
(h) loans and advances to employees in the ordinary course of business not exceeding $5,000,000 in the aggregate;
(i) investments in the form of Swap Contracts permitted by Section 8.01;
(j) deposits to secure bids, tenders, utilities, vendors, leases, licenses, statutory obligations, surety and appeal bonds and other deposits of like nature arising in the ordinary course of business;
(k) investments by any Receivables Financing SPC or any Loan Party in a Receivables Financing SPC in each case made in connection with a Permitted Receivables Financing, and loans permitted by the applicable Permitted Receivables Financing that are made by a Loan Party to a Receivables Financing SPC or by a Receivables Financing SPC to a Loan Party in connection therewith;
(l) investments acquired through a Permitted Acquisition, each of which (i) existed before the time of acquisition of the Person or assets of the Person who made such investment and (ii) was not made in anticipation of such acquisition;
(m) the CoBank Equities and any other stock or securities of, or Investments in, CoBank or its investment services or programs;
(n) investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors or other disputes with customers or suppliers to the extent reasonably necessary in order to prevent or limit loss and Investments consisting of the prepayment of suppliers and service providers on customary terms in the ordinary course of business;
(o) Guarantees permitted by Section 8.01;
(p) to the extent permitted by Section 8.05, non-cash consideration received in connection with sales or dispositions;
(q) to the extent constituting an investment by such Person, the payment, prepayment, redemption or acquisition for value of Indebtedness of such Person permitted by this Agreement;
(r) investments to the extent made with (i) Equity Interests of the Borrower or (ii) the cash proceeds of an Equity Issuance by the Borrower, so long as such investment is consummated within 90 days of such Equity Issuance;
(s) additional investments in Unrestricted Subsidiaries during any fiscal year in an amount equal to the aggregate amount of dividends and other distributions received by the Borrower or its Restricted Subsidiaries from Unrestricted Subsidiaries and payments of Indebtedness by an Unrestricted Subsidiary to the Borrower or any Subsidiarya Restricted Subsidiary during such fiscal year; and
(t) additional investments during any fiscal year in an aggregate amount not exceeding the Annual Investment Limitation for such fiscal year; provided that to the extent that (i) mergerssubsequent to any such investment but not later than 90 days thereafter, consolidations and other transactions permitted under Section 6.02, so long as same do not cause the Borrower consummates an Equity Issuance during such fiscal year and (ii) the Borrower promptly (and in any event within three Business Days following receipt thereof) repays the Loans with the net cash proceeds of such Equity Issuance, the amount of such investment (to the extent not in excess of the amount of such prepayment) shall be in violation deemed not to have reduced the Annual Investment Limitation for such fiscal year. As used herein, “Annual Investment Limitation” means, for any fiscal year of the Borrower, the greater of (i) $75,000,000 and (ii) 10% of Consolidated Tangible Assets as of the later of the Initial Funding Date or the first day of such fiscal year. For purposes of covenant compliance, the amount of any provision investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of this Section 6.03. The loans and investments described above may be purchased such investment, less any amount repaid, returned, distributed or acquiredotherwise received in respect of any investment, directly or indirectlyin each case, through partnerships, joint ventures, or otherwisein cash.
Appears in 2 contracts
Samples: Credit Agreement (Dean Foods Co), Credit Agreement (WHITEWAVE FOODS Co)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment (including by way of Guarantees) or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unitunit (whether through purchase of assets, not including receivables, deposits merger or prepaid itemsotherwise), except:
(a) Permitted Investmentsinvestments in cash and Cash Equivalents;
(b) investments in existence on the capital stock of new or existing Subsidiaries Closing Date and intercompany loans between or among described in Schedule 8.04 and amendments, extensions and renewals thereof that do not increase the Borrower and/or its Subsidiariesamount thereof and investments reflected on Schedule 6.01;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Equity Percentage for that Unconsolidated Affiliate), operating deposit accounts with depository institutions and in other real estate investment trusts (at market value)ordinary course cash management;
(d) loans, advances and extensions of credit to Affiliates of the Borrower that are Mortgage Notes investments received in connection with a disposition permitted under Section 8.05(h) or are used to purchase TIF obligations(i);
(e) loans, advances purchases of inventory and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations other assets to be sold or securities received in settlement of debts (created used in the ordinary course of business;
(f) owing investments by (i) any Loan Party in any Loan Party, (ii) any Restricted Subsidiary that is not a Loan Party in the Borrower or any other Restricted Subsidiary and (iii) any Loan Party in any Restricted Subsidiary that is not a Loan Party; provided that the aggregate principal amount of investments made after the Third Amendment Effective Date pursuant to this clause (iii) shall not exceed the greater of $525,000,000 and 12.5% of Consolidated Total Assets (as shown on or determined in accordance with the most recent financial statements of the Borrower delivered pursuant to Section 7.01(a) or (b) prior to the date of the making thereof) at any time outstanding;
(g) loans and advances to employees in the ordinary course of business not exceeding $10,000,000 in the aggregate;
(h) investments in the form of Swap Contracts permitted by Section 8.01(h);
(i) deposits to secure bids, tenders, utilities, vendors, leases, licenses, statutory obligations, surety and appeal bonds, performance bonds and other deposits of like nature arising in the ordinary course of business;
(j) investments by any Receivables Financing SPC, the Borrower or any Restricted Subsidiary in a Receivables Financing SPC in each case made in connection with a Permitted Receivables Financing, and loans permitted by the applicable Permitted Receivables Financing that are made by the Borrower or a Restricted Subsidiary to a Receivables Financing SPC or by a Receivables Financing SPC to the Borrower or a Restricted Subsidiary in connection therewith;
(k) the Farm Credit Equities and any Subsidiaryother stock or securities of, or investments in, a Farm Credit Lender or its investment services or programs;
(l) investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors or other disputes with customers or suppliers and investments consisting of the prepayment of suppliers and service providers on customary terms in the ordinary course of business;
(m) Guarantees of Indebtedness permitted by Section 8.01 and of other obligations otherwise permitted hereunder;
(n) investments in prepaid expenses, utility and workers’ compensation, performance and other similar deposits, each as entered into in the ordinary course of business;
(o) investments consisting of the licensing, sublicensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(p) investments to the extent made with (i) Qualified Equity Interests of the Borrower or (ii) the cash proceeds of any issuance of Equity Interests by the Borrower so long as such investment is consummated within 90 days of such issuance of Equity Interests (provided that such cash proceeds shall not be included in the Available Amount);
(q) additional investments made after the Third Amendment Effective Date in an aggregate amount not to exceed the greater of $525,000,000 and 12.5% of Consolidated Total Assets (as shown on or determined in accordance with the most recent financial statements of the Borrower delivered pursuant to Section 7.01(a) or (b) prior to the date of the making thereof) at any time outstanding;
(r) the Transactions and Permitted Acquisitions;
(s) other investments so long as, on a Pro Forma Basis immediately after the making of any such investment, the Consolidated Net Leverage Ratio does not exceed 4.50 to 1.00;
(t) subject to the absence of any continuing Event of Default and compliance by the Borrower on a Pro Forma Basis with the covenants set forth in Section 8.11 (each in accordance with Section 1.06, if applicable), investments from the Available Amount; and
(iu) mergersinvestments made during a Collateral and Guarantee Suspension Period. For purposes of covenant compliance, consolidations and the amount of any investment shall be the amount actually invested (with respect to any investment made other transactions permitted under Section 6.02than in the form of cash or Cash Equivalents, so long valued at the fair market value thereof (as same do not cause reasonably determined by the Borrower to be in violation good faith) at the time of the making thereof), without adjustment for subsequent increases or decreases in the value of such investment, less any amount repaid, returned, distributed or otherwise received in respect of any provision investment, in each case, in cash, and the amount of any investment constituting a Guarantee shall be determined as stated in the definition of “Guarantee.” Any investment in any Person other than a Loan Party that is otherwise permitted by this Section 6.03. The loans and investments described above 8.04 may be purchased made through intermediate investments in Restricted Subsidiaries that are not Loan Parties and such intermediate investments shall be disregarded for purposes of determining the outstanding amount of investments pursuant to any clause set forth above. For purposes of determining compliance with this Section 8.04, if an investment meets, in whole or acquiredin part, directly the criteria of one or indirectlymore of the categories of investments (or any portion thereof) permitted in this Section 8.04, through partnershipsthe Borrower may, joint venturesin its sole discretion, classify or otherwisedivide such investment (or any portion thereof) in any manner that complies with this Section 8.04 and will be entitled to only include the amount and type of such investment (or any portion thereof) in one of the above clauses and such investment will be treated as being incurred pursuant to only such clause or clauses (or any portion thereof).
Appears in 2 contracts
Samples: Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, not including receivables, deposits or prepaid items, except:
(a) Permitted Investments;
(b) investments in the capital stock of new or existing Subsidiaries and intercompany loans between or among the Borrower and/or its Subsidiaries;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Equity Percentage for that Unconsolidated Affiliate), and in other real estate investment trusts (at market value);
(d) loans, advances and extensions of credit to Affiliates of the Borrower that are Mortgage Notes or are used to purchase TIF obligations;
(e) loans, advances and extensions of credit that are not included in clause (d), so long as the aggregate amount of such investments (exclusive of the intercompany loans described in clause (b) above) does not exceed five percent (5%) of Total Asset Value after giving effect to such investments;
(f) undeveloped land;
(g) Real Retail Property;
(h) Real Property that is being constructed or developed to be Retail Property or Industrial Property, but is not yet completed (including such assets that such Person has contracted to purchase for development with no option to terminate the purchase agreement);
(i) Real Property not constituting Retail Property or undeveloped land so long as the aggregate amount of such investments does not exceed fifteen percent (15%) of Total Asset Value after giving effect to such investments;
(j) capital stock, obligations or securities received in settlement of debts (created in the ordinary course of business) owing to the Borrower or any Subsidiary; and
(ik) mergers, consolidations and other transactions permitted under Section 6.02, so long as same do not cause the Borrower to be in violation of any provision of this Section 6.03. In addition to the foregoing, the aggregate amount or Value (in the case of (f) and (h)) of the investments described in clauses (c), (d), (e), (f), (h) and (j) above shall not exceed thirty percent (30%) of Total Asset Value after giving effect to such investments. The loans and investments described above may be purchased or acquired, directly or indirectly, through partnerships, joint ventures, or otherwise. The calculations in this Section will be made without duplication if a loan or investment is within more than one category described in this Section.
Appears in 2 contracts
Samples: Credit Agreement (Weingarten Realty Investors /Tx/), Credit Agreement (Weingarten Realty Investors /Tx/)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unitunit (whether through purchase of assets, not including receivables, deposits merger or prepaid itemsotherwise), except:
(a) cash, Cash Equivalents and Permitted InvestmentsAcquisitions;
(b) investments in existence on the capital Effective Date and described in Schedule 6.04, and the Class A common stock of new or existing Subsidiaries and intercompany loans between or among The WhiteWave Foods Company held by the Borrower and/or its SubsidiariesBorrower;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Equity Percentage for that Unconsolidated Affiliate), and in other real estate investment trusts (at market value)operating deposit accounts with depository institutions;
(d) loans, advances and extensions of credit to Affiliates of the Borrower that are Mortgage Notes or are used to purchase TIF obligationsinvestments received in connection with a disposition permitted under Section 6.05;
(e) loans, advances purchases of inventory and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations other assets to be sold or securities received in settlement of debts (created used in the ordinary course of business;
(f) owing investments by any Subsidiary of the Borrower in the Borrower and investments by any Loan Party or any Restricted Subsidiary in any Loan Party or any Restricted Subsidiary (including, but not limited to, loans from a Restricted Subsidiary to another Restricted Subsidiary);
(g) investments by the Borrower and its Restricted Subsidiaries in the Equity Interests of their Subsidiaries to the extent outstanding as of the Effective Date;
(h) loans and advances to employees in the ordinary course of business not exceeding $10,000,000 in the aggregate;
(i) investments in the form of Swap Agreements permitted by Section 6.01;
(j) deposits to secure bids, tenders, utilities, vendors, leases, licenses, statutory obligations, surety and appeal bonds and other deposits of like nature arising in the ordinary course of business;
(k) investments by any Receivables Financing SPC or any Loan Party in a Receivables Financing SPC in each case made in connection with a Permitted Receivables Financing, and loans permitted by the applicable Permitted Receivables Financing that are made by a Loan Party to a Receivables Financing SPC or by a Receivables Financing SPC to a Loan Party in connection therewith;
(l) investments acquired through a Permitted Acquisition, each of which (i) existed before the time of acquisition of the Person or assets of the Person who made such investment and (ii) was not made in anticipation of such acquisition;
(m) investments by the Borrower and its Subsidiaries in a Captive Insurance Company in a cumulative amount from the Effective Date not to exceed $75,000,000;
(n) investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors or other disputes with customers or suppliers to the extent reasonably necessary in order to prevent or limit loss and Investments consisting of the prepayment of suppliers and service providers on customary terms in the ordinary course of business;
(o) Guarantees permitted by Section 6.01;
(p) to the extent permitted by Section 6.05, non-cash consideration received in connection with sales or dispositions;
(q) to the extent constituting an investment by such Person, the payment, prepayment, redemption or acquisition for value of Indebtedness of such Person permitted by this Agreement;
(r) investments to the extent made with (i) Equity Interests of the Borrower or (ii) the cash proceeds of an Equity Issuance by the Borrower, so long as such investment is consummated within 90 days of such Equity Issuance;
(s) additional investments in Unrestricted Subsidiaries during any fiscal year in an amount equal to the aggregate amount of dividends and other distributions received by the Borrower or its Restricted Subsidiaries from Unrestricted Subsidiaries and payments of Indebtedness by an Unrestricted Subsidiary to the Borrower or any Subsidiarya Restricted Subsidiary during such fiscal year; and
(t) additional investments during any fiscal year in an aggregate amount not exceeding the Annual Investment Limitation for such fiscal year; provided that to the extent that (i) mergerssubsequent to any such investment but not later than 90 days thereafter, consolidations and other transactions permitted under Section 6.02, so long as same do not cause the Borrower consummates an Equity Issuance during such fiscal year and (ii) the Borrower promptly (and in any event within three Business Days following receipt thereof) repays the Loans with the net cash proceeds of such Equity Issuance, the amount of such investment (to be the extent not in violation of any provision of this Section 6.03. The loans and investments described above may be purchased or acquired, directly or indirectly, through partnerships, joint ventures, or otherwise.excess
Appears in 1 contract
Samples: Credit Agreement (Dean Foods Co)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, not including receivables, deposits or prepaid items, except:
(a) Permitted Investments;
(b) investments in existing on the capital stock of new or existing Subsidiaries date hereof and intercompany loans between or among the Borrower and/or its Subsidiariesset forth on Schedule 6.04;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Borrower and its Subsidiaries in Equity Percentage for that Unconsolidated Affiliate), and Interests in other real estate investment trusts (at market value)their respective Subsidiaries;
(d) loans, loans or advances and extensions of credit to Affiliates of made by the Borrower to any Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary; provided that are Mortgage Notes or are used such loans and advances shall be subject to purchase TIF obligationsthe conditions set forth in Section 6.01(c);
(e) loans, advances and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations or securities investments received in connection with the bankruptcy or reorganization of, or settlement of debts (created delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(f) owing notes and other non-cash consideration received as part of the purchase price of assets disposed of pursuant to Section 6.05;
(g) extension of trade credit in the Borrower or any Subsidiary; andordinary course of business;
(h) Swap Agreements permitted by Section 6.07;
(i) mergersloans and advances to officers, consolidations directors, and other transactions permitted under Section 6.02, so long as same do not cause employees of the Borrower and the Subsidiaries made in the ordinary course of business for travel and entertainment expenses, relocation costs and similar purposes up to be a maximum for all such loans and advances of $15,000,000 in violation the aggregate at any one time outstanding;
(j) endorsements of items for collection or deposit in the ordinary course of business;
(k) Borrower or a Subsidiary may purchase, hold or acquire (including pursuant to a merger) all the Equity Interests in a Person and may purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any provision other Person or all or substantially all of this Section 6.03. The loans and investments described above may be purchased the assets of a division or acquiredbranch of such Person, directly or indirectlyif, through partnerships, joint ventures, or otherwise.with respect to each such acquisition:
Appears in 1 contract
Samples: Credit Facility Agreement (Lennox International Inc)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, not including receivables, deposits or prepaid items, except:
(a) Permitted Investments;
(b) investments in existing on the capital stock of new or existing Subsidiaries date hereof and intercompany loans between or among the Borrower and/or its Subsidiariesset forth on Schedule 6.04;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Borrower and its Subsidiaries in Equity Percentage for that Unconsolidated Affiliate), and Interests in other real estate investment trusts (at market value)their respective Subsidiaries;
(d) loans, loans or advances and extensions of credit to Affiliates of made by the Borrower to any Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary; provided that are Mortgage Notes or are used such loans and advances shall be subject to purchase TIF obligationsthe conditions set forth in Section 6.01(d);
(e) loans, advances and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations or securities investments received in connection with the bankruptcy or reorganization of, or settlement of debts (created delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(f) owing notes and other non–cash consideration received as part of the purchase price of assets disposed of pursuant to Section 6.05;
(g) extension of trade credit in the Borrower or any Subsidiary; andordinary course of business;
(h) Swap Agreements permitted by Section 6.07;
(i) mergersloans and advances to officers, consolidations directors, and other transactions permitted under Section 6.02, so long as same do not cause employees of the Borrower and the Subsidiaries made in the ordinary course of business for travel and entertainment expenses, relocation costs and similar purposes up to be a maximum for all such loans and advances of $10,000,000 in violation the aggregate at any one time outstanding;
(j) endorsements of items for collection or deposit in the ordinary course of business;
(k) Borrower or a Subsidiary may purchase, hold or acquire (including pursuant to a merger) all the Equity Interests in a Person and may purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any provision other Person or all or substantially all of this Section 6.03. The loans and investments described above may be purchased the assets of a division or acquiredbranch of such Person, directly or indirectlyif, through partnerships, joint ventures, or otherwise.with respect to each such acquisition:
Appears in 1 contract
Samples: Short Term Facility Agreement (Lennox International Inc)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, not including receivables, deposits or prepaid items, except:
(a) Permitted Investments;
(b) investments in existing on the capital stock of new or existing Subsidiaries date hereof and intercompany loans between or among the Borrower and/or its Subsidiariesset forth on Schedule 6.04;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Borrower and its Subsidiaries in Equity Percentage for that Unconsolidated Affiliate), and Interests in other real estate investment trusts (at market value)their respective Subsidiaries;
(d) loans, loans or advances and extensions of credit to Affiliates of made by the Borrower to any Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary; provided that are Mortgage Notes or are used such loans and advances shall be subject to purchase TIF obligationsthe conditions set forth in Section 6.01(c);
(e) loans, advances and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations or securities investments received in connection with the bankruptcy or reorganization of, or settlement of debts (created delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(f) owing notes and other non-cash consideration received as part of the purchase price of assets disposed of pursuant to Section 6.05;
(g) extension of trade credit in the Borrower or any Subsidiary; andordinary course of business;
(h) Swap Agreements permitted by Section 6.07;
(i) mergersloans and advances to officers, consolidations directors, and other transactions permitted under Section 6.02, so long as same do not cause employees of the Borrower and the Subsidiaries made in the ordinary course of business for travel and entertainment expenses, relocation costs and similar purposes up to be a maximum for all such loans and advances of $10,000,000 in violation the aggregate at any one time outstanding;
(j) endorsements of items for collection or deposit in the ordinary course of business;
(k) Borrower or a Subsidiary may purchase, hold or acquire (including pursuant to a merger) all the Equity Interests in a Person and may purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any provision other Person or all or substantially all of this Section 6.03. The loans and investments described above may be purchased the assets of a division or acquiredbranch of such Person, directly or indirectlyif, through partnerships, joint ventures, or otherwise.with respect to each such acquisition:
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Lennox International Inc)
Investments, Loans, Advances and Acquisitions. The Borrower No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unitunit (whether through purchase of assets, not including receivables, deposits merger or prepaid itemsotherwise), except:
(a) Permitted Investments;
(b) investments in existence on the capital stock of new or existing Subsidiaries Effective Date and intercompany loans between or among the Borrower and/or its Subsidiariesdescribed in Schedule 6.04;
(c) investments loans or advances to officers, directors and employees of the Borrower and its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes of the Borrower and the Subsidiaries, (ii) in Unconsolidated Affiliates (valued at an amount equal to connection with such Person’s purchase of Equity Interests of the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Equity Percentage for that Unconsolidated Affiliate)Borrower, and (iii) for purposes not described in other real estate investment trusts the foregoing clauses (at market valuei) and (ii);
(d) loans, advances and extensions investments of credit to Affiliates any Person existing at the time such Person becomes a Subsidiary of the Borrower that are Mortgage Notes or are used to purchase TIF obligationsconsolidates or merges with the Borrower or any Subsidiary, so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(e) loans, advances and extensions investments received in connection with the disposition of credit that are not included in clause (d);assets permitted by Section 6.05; and
(f) undeveloped landinvestments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”;
(g) Real Propertyinvestments by the Borrower in any Subsidiary and by any Subsidiary in the Borrower or another Subsidiary;
(h) capital stock, obligations investments constituting Permitted Acquisitions and any deferred or securities received in settlement of debts restricted compensation arrangements related thereto;
(created i) investments constituting Securities purchased by Broker-Dealer Subsidiaries and acquired in the ordinary course of businessbusiness and consistent with past practice;
(j) owing investments in Securities to fund deferred compensation plans or nonqualified plans for employees in the ordinary course of business and consistent with past practice;
(k) investments constituting variable interest entities and investments in funds managed or advised by the Borrower or any SubsidiarySubsidiary in the ordinary course of business and consistent with past practice;
(l) investments consisting of marketable Securities purchased under agreements to resell;
(m) Investments made by the Borrower and its Subsidiaries related to “continuation funds” involving limited partners selling stakes of such limited partnerships or similar receivables; and
(in) mergersother investments in the ordinary course of business and consistent with past practice, consolidations and other transactions permitted under Section 6.02, so long as same do in an aggregate principal amount not cause the Borrower to be in violation of exceed $50,000,000 at any provision of this Section 6.03. The loans and investments described above may be purchased or acquired, directly or indirectly, through partnerships, joint ventures, or otherwisetime outstanding.
Appears in 1 contract
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unitunit (whether through purchase of assets, not including receivables, deposits merger or prepaid itemsotherwise), except:
(a) cash, Cash Equivalents and Permitted InvestmentsAcquisitions;
(b) investments in existence on the capital stock of new or existing Subsidiaries Effective Date and intercompany loans between or among the Borrower and/or its Subsidiariesdescribed in Schedule 6.04;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Equity Percentage for that Unconsolidated Affiliate), and in other real estate investment trusts (at market value)operating deposit accounts with depository institutions;
(d) loans, advances and extensions of credit to Affiliates of the Borrower that are Mortgage Notes or are used to purchase TIF obligationsinvestments received in connection with a disposition permitted under Section 6.05;
(e) loans, advances purchases of inventory and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations other assets to be sold or securities received in settlement of debts (created used in the ordinary course of business;
(f) owing investments by any Subsidiary of the Borrower in any Loan Party, investments by any Loan Party in any other Loan Party (including, but not limited to, intercompany loans) and investments by Subsidiaries of the Borrower that are not Loan Parties in Subsidiaries of the Borrower that are not Loan Parties;
(g) Investments by the Borrower and its Restricted Subsidiaries in the Equity Interests of their Subsidiaries to the extent outstanding as of the Effective Date;
(h) loans and advances to employees in the ordinary course of business not exceeding $10,000,000 in the aggregate;
(i) investments in the form of Swap Agreements permitted by Section 6.01;
(j) deposits to secure bids, tenders, utilities, vendors, leases, licenses, statutory obligations, surety and appeal bonds and other deposits of like nature arising in the ordinary course of business;
(k) investments by any Receivables Financing SPC or any Loan Party in a Receivables Financing SPC in each case made in connection with a Permitted Receivables Financing, and loans permitted by the applicable Permitted Receivables Financing that are made by a Loan Party to a Receivables Financing SPC or by a Receivables Financing SPC to a Loan Party in connection therewith;
(l) investments acquired through a Permitted Acquisition, each of which (i) existed before the time of acquisition of the Person or assets of the Person who made such investment and (ii) was not made in anticipation of such acquisition;
(m) investments by the Borrower and its Subsidiaries in a Captive Insurance Company in a cumulative amount from the Effective Date not to exceed $75,000,000;
(n) investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors or other disputes with customers or suppliers to the extent reasonably necessary in order to prevent or limit loss and Investments consisting of the prepayment of suppliers and service providers on customary terms in the ordinary course of business;
(o) Guarantees permitted by Section 6.01;
(p) to the extent permitted by Section 6.05, non-cash consideration received in connection with sales or dispositions;
(q) to the extent constituting an investment by such Person, the payment, prepayment, redemption or acquisition for value of Indebtedness of such Person permitted by this Agreement;
(r) investments to the extent made with (i) Equity Interests of the Borrower or (ii) the cash proceeds of an Equity Issuance by the Borrower, so long as such investment is consummated within 90 days of such Equity Issuance;
(s) additional investments in Unrestricted Subsidiaries during any fiscal year in an amount equal to the aggregate amount of dividends and other distributions received by the Borrower or its Restricted Subsidiaries from Unrestricted Subsidiaries and payments of Indebtedness by an Unrestricted Subsidiary to the Borrower or any Subsidiarya Restricted Subsidiary during such fiscal year; and
(t) additional investments during any fiscal year in an aggregate amount not exceeding the Annual Investment Limitation for such fiscal year; provided that to the extent that (i) mergerssubsequent to any such investment but not later than 90 days thereafter, consolidations and other transactions permitted under Section 6.02, so long as same do not cause the Borrower to be in violation of any provision of this Section 6.03. The loans consummates an Equity Issuance during such fiscal year and investments described above may be purchased or acquired, directly or indirectly, through partnerships, joint ventures, or otherwise.(ii) the Borrower
Appears in 1 contract
Samples: Credit Agreement (Dean Foods Co)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoingforegoing but excluding Restricted Payments permitted by Section 6.07) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit, not including receivables, deposits or prepaid items, except:
(a) cash and Permitted Investments;
(b) investments in the capital stock of new or existing Subsidiaries and intercompany loans between or among the Borrower and/or its SubsidiariesPermitted Acquisitions;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Equity Percentage for that Unconsolidated Affiliate), Borrower and in other real estate investment trusts (at market value)its Subsidiaries existing on the date hereof;
(d) investments, loans, advances and extensions of credit to Affiliates of or capital contributions made by the Borrower in or to any Subsidiary and made by any Subsidiary in or to the Borrower or any other Subsidiary (provided that not more than an aggregate amount of $5,000,000 in investments, loans, advances or capital contributions may be made and remain outstanding, at any time, by Loan Parties to Subsidiaries which are Mortgage Notes or are used to purchase TIF obligationsnot Loan Parties);
(e) loans, advances and extensions of credit that are not included in clause (d)operating deposit accounts with depository institutions;
(f) undeveloped landinvestments received in connection with a disposition permitted under Section 6.03 and investments (including debt obligations) received in the ordinary course of business by the Borrower or any Subsidiary in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising out of the ordinary course of business;
(g) Real Property;
(h) capital stockpurchases of inventory and other assets to be sold or used in the ordinary course of business and, obligations to the extent constituting investments or securities received in settlement of debts (created loans, accounts receivable or notes receivable arising in the ordinary course of business;
(h) owing loans and advances to employees in the ordinary course of business not exceeding $2,500,000 in the aggregate at any time outstanding;
(i) investments in the form of Swap Agreements permitted under Section 6.05;
(j) deposits to secure bids, tenders, utilities, vendors, leases, licenses, statutory obligations, surety and appeal bonds and other deposits of like nature arising in the ordinary course of business;
(k) investments by the Borrower or any Subsidiaryof Subsidiaries, each of which (i) existed before the time of acquisition of the Person or assets of the Person who made such investment and (ii) was not made in anticipation of such acquisition;
(l) investments in the China Joint Venture so long as the aggregate amount of such investments does not exceed $10,000,000 during the term of this Agreement; and
(im) mergersany other investment, consolidations and loan or advance (other transactions permitted under Section 6.02, than acquisitions) so long as same do the aggregate amount of all such investments, loans and advances does not cause exceed $10,000,000 during the Borrower to be in violation term of this Agreement. It is understood and agreed that for purposes of determining the value of any provision investment outstanding for purposes of this Section 6.03. The loans and investments described above may 6.04, such amount shall deemed to be the amount of such investment when made, purchased or acquired, directly or indirectly, through partnerships, joint ventures, or otherwiseacquired less any returns on such investment (not to exceed the original amount invested).
Appears in 1 contract
Samples: Credit Agreement (Blackboard Inc)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unitunit (whether through purchase of assets, not including receivables, deposits merger or prepaid itemsotherwise), except:
(a) : cash, Cash Equivalents and Permitted Investments;
(b) Acquisitions; investments in existence on the capital stock of new or existing Subsidiaries Effective Date and intercompany loans between or among the Borrower and/or its Subsidiaries;
(c) described in Schedule 6.04; operating deposit accounts with depository institutions; investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Equity Percentage for that Unconsolidated Affiliate), and in other real estate investment trusts (at market value);
(d) loans, advances and extensions of credit to Affiliates of the Borrower that are Mortgage Notes or are used to purchase TIF obligations;
(e) loans, advances and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations or securities received in settlement connection with a disposition permitted under Section 6.05; purchases of debts (created inventory and other assets to be sold or used in the ordinary course of business; investments by any Subsidiary of the Borrower in any Loan Party, investments by any Loan Party in any other Loan Party (including, but not limited to, intercompany loans) owing and investments by Subsidiaries of the Borrower that are not Loan Parties in Subsidiaries of the Borrower that are not Loan Parties; Investmentsinvestments by the Borrower and its Restricted Subsidiaries in the Equity Interests of their Subsidiaries to the extent outstanding as of the Effective Date; loans and advances to employees in the ordinary course of business not exceeding $10,000,000 in the aggregate; investments in the form of Swap Agreements permitted by Section 6.01; deposits to secure bids, tenders, utilities, vendors, leases, licenses, statutory obligations, surety and appeal bonds and other deposits of like nature arising in the ordinary course of business; investments by any Receivables Financing SPC or any Loan Party in a Receivables Financing SPC in each case made in connection with a Permitted Receivables Financing, and loans permitted by the applicable Permitted Receivables Financing that are made by a Loan Party to a Receivables Financing SPC or by a Receivables Financing SPC to a Loan Party in connection therewith; investments acquired through a Permitted Acquisition, each of which (i) existed before the time of acquisition of the Person or assets of the Person who made such investment and (ii) was not made in anticipation of such acquisition; investments by the Borrower and its Subsidiaries in a Captive Insurance Company in a cumulative amount from the Effective Date not to exceed $75,000,000; investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors or other disputes with customers or suppliers to the extent reasonably necessary in order to prevent or limit loss and Investments consisting of the prepayment of suppliers and service providers on customary terms in the ordinary course of business; Guarantees permitted by Section 6.01; to the extent permitted by Section 6.05, non-cash consideration received in connection with sales or dispositions; to the extent constituting an investment by such Person, the payment, prepayment, redemption or acquisition for value of Indebtedness of such Person permitted by this Agreement; investments to the extent made with (i) Equity Interests of the Borrower or (ii) the cash proceeds of an Equity Issuance by the Borrower, so long as such investment is consummated within 90 days of such Equity Issuance; additional investments in Unrestricted Subsidiaries during any fiscal year in an amount equal to the aggregate amount of dividends and other distributions received by the Borrower or its Restricted Subsidiaries from Unrestricted Subsidiaries and payments of Indebtedness by an Unrestricted Subsidiary to the Borrower or any Subsidiarya Restricted Subsidiary during such fiscal year; and
(i) mergers, consolidations and other transactions permitted under Section 6.02, so long as same do not cause the Borrower to be in violation of any provision of this Section 6.03. The loans and investments described above may be purchased or acquired, directly or indirectly, through partnerships, joint ventures, or otherwise.
Appears in 1 contract
Samples: Credit Agreement (Dean Foods Co)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, not including receivables, deposits or prepaid items, except:
(a) Permitted Investments;
(b) investments in existing on the capital stock of new or existing Subsidiaries date hereof and intercompany loans between or among the Borrower and/or its Subsidiariesset forth on Schedule 6.04;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Borrower and its Subsidiaries in Equity Percentage for that Unconsolidated Affiliate), and Interests in other real estate investment trusts (at market value)their respective Subsidiaries;
(d) loans, loans or advances and extensions of credit to Affiliates of made by the Borrower to any Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary; provided that are Mortgage Notes or are used such loans and advances shall be subject to purchase TIF obligationsthe conditions set forth in Section 6.01(c);
(e) loans, advances and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations or securities investments received in connection with the bankruptcy or reorganization of, or settlement of debts (created delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(f) owing notes and other non–cash consideration received as part of the purchase price of assets disposed of pursuant to Section 6.05;
(g) extension of trade credit in the Borrower or any Subsidiary; andordinary course of business;
(h) Swap Agreements permitted by Section 6.07;
(i) mergersloans and advances to officers, consolidations directors, and other transactions permitted under Section 6.02, so long as same do not cause employees of the Borrower and the Subsidiaries made in the ordinary course of business for travel and entertainment expenses, relocation costs and similar purposes up to be a maximum for all such loans and advances of $10,000,000 in violation the aggregate at any one time outstanding;
(j) endorsements of items for collection or deposit in the ordinary course of business;
(k) Borrower or a Subsidiary may purchase, hold or acquire (including pursuant to a merger) all the Equity Interests in a Person and may purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any provision other Person or all or substantially all of this Section 6.03. The loans and investments described above may be purchased the assets of a division or acquiredbranch of such Person, directly or indirectlyif, through partnerships, joint ventures, or otherwise.with respect to each such acquisition:
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Lennox International Inc)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with with, or as Division Successor pursuant to the Division of, any Person that was not a wholly owned Subsidiary prior to such mergermerger or Division) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other PersonPerson (each of the foregoing items is referred to herein as an “investment”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, not including receivables, deposits or prepaid items, except:
(a) Permitted Investments;
(b) investments in existing on the capital stock of new or existing Subsidiaries date hereof and intercompany loans between or among the Borrower and/or its Subsidiariesset forth on Schedule 6.04;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Borrower and its Subsidiaries in Equity Percentage for that Unconsolidated Affiliate), and Interests in other real estate investment trusts (at market value)their respective Subsidiaries;
(d) loans, loans or advances and extensions of credit to Affiliates of made by the Borrower to any Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary; provided that are Mortgage Notes or are used such loans and advances shall be subject to purchase TIF obligationsthe conditions set forth in Section 6.01(c);
(e) loans, advances and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations or securities investments received in connection with the bankruptcy or reorganization of, or settlement of debts (created delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(f) owing notes and other non–cash consideration received as part of the purchase price of assets disposed of pursuant to Section 6.05;
(g) extension of trade credit, loans, notes receivable and other extensions of credit to subcontractors, suppliers or customers, each in the Borrower or any Subsidiary; andordinary course of business;
(h) Swap Agreements permitted by Section 6.07;
(i) mergersloans and advances to officers, consolidations directors, and other transactions permitted under Section 6.02, so long as same do not cause employees of the Borrower and the Subsidiaries made in the ordinary course of business for travel and entertainment expenses, relocation costs and similar purposes up to be a maximum for all such loans and advances of $15,000,000 in violation the aggregate at any one time outstanding;
(j) endorsements of items for collection or deposit in the ordinary course of business;
(k) Borrower or a Subsidiary may purchase, hold or acquire (including pursuant to a merger) all the Equity Interests in a Person and may purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any provision other Person or all or substantially all of this Section 6.03. The loans and investments described above may be purchased the assets of a division or acquiredbranch of such Person, directly or indirectlyif, through partnerships, joint ventures, or otherwise.with respect to each such acquisition:
Appears in 1 contract
Samples: Credit Facility Agreement (Lennox International Inc)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unitunit (whether through purchase of assets, not including receivables, deposits merger or prepaid itemsotherwise), except:
(a) cash, Permitted InvestmentsInvestments and Permitted Acquisitions;
(b) investments in existence on the capital stock Original Effective Date and described in Schedule 6.04 and other investments outstanding as of new or existing Subsidiaries and intercompany loans between or among the Borrower and/or its SubsidiariesOriginal Effective Date not exceeding in acquisition cost $20,000,000 in the aggregate;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Equity Percentage for that Unconsolidated Affiliate), and in other real estate investment trusts (at market value)operating deposit accounts with depository institutions;
(d) loans, advances investments received in connection with a disposition permitted under Section 6.05 and extensions indemnities executed in connection with the sale of credit to Affiliates of the Borrower that are Mortgage Notes or are used to purchase TIF obligationsInvestment Tax Credits;
(e) loans, advances purchases of inventory and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations other assets to be sold or securities received in settlement of debts (created used in the ordinary course of business;
(f) owing investments by any Subsidiary of the Borrower in the Borrower and investments by any Loan Party or any Restricted Subsidiary in any Loan Party or any Restricted Subsidiary (including, but not limited to, loans from a Restricted Subsidiary to another Restricted Subsidiary);
(g) investments by the Borrower and its Subsidiaries in the Equity Interests of their Subsidiaries to the extent outstanding as of the Original Effective Date;
(h) loans and advances to employees in the ordinary course of business not exceeding $10,000,000 in the aggregate;
(i) investments in the form of Swap Agreements permitted by Section 6.01;
(j) deposits to secure bids, tenders, utilities, vendors, leases, licenses, statutory obligations, surety and appeal bonds and other deposits of like nature arising in the ordinary course of business;
(k) Investments by any Loan Party in a Receivables Financing SPC made in connection with a Permitted Receivables Financing;
(l) Investments by the Borrower and its Subsidiaries in a Captive Insurance Company in a cumulative amount from the Original Effective Date not to exceed $75,000,000;
(m) additional Investments up to but not exceeding $80,000,000 in the aggregate during each fiscal year, including investments in Unrestricted Subsidiaries; provided, however, that notwithstanding the foregoing, the Borrower shall be permitted to make additional investments in Unrestricted Subsidiaries during any fiscal year in an amount equal to the aggregate amount of dividends and other distributions received by the Borrower or its Restricted Subsidiaries from Unrestricted Subsidiaries and payments of Indebtedness by an Unrestricted Subsidiary to the Borrower or any Subsidiarya Restricted Subsidiary during such fiscal year; and
(n) Investments by the Borrower or any of its Restricted Subsidiaries, each of which (i) mergers, consolidations existed before the time of acquisition of the Person or assets of the Person who made such investment and other transactions permitted under Section 6.02, so long as same do (ii) was not cause the Borrower to be made in violation anticipation of any provision of this Section 6.03. The loans and investments described above may be purchased or acquired, directly or indirectly, through partnerships, joint ventures, or otherwisesuch acquisition.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Dean Foods Co)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unitunit (whether through purchase of assets, not including receivables, deposits merger or prepaid itemsotherwise), except:
(a) cash, Permitted InvestmentsInvestments and Permitted Acquisitions;
(b) investments in existence on the capital stock date of new or existing Subsidiaries this Agreement and intercompany loans between or among described in Schedule 6.04 and other investments outstanding as of the Borrower and/or its SubsidiariesEffective Date not exceeding in acquisition cost $20,000,000 in the aggregate;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Equity Percentage for that Unconsolidated Affiliate), and in other real estate investment trusts (at market value)operating deposit accounts with depository institutions;
(d) loans, advances investments received in connection with a disposition permitted under Section 6.05 and extensions indemnities executed in connection with the sale of credit to Affiliates of the Borrower that are Mortgage Notes or are used to purchase TIF obligationsInvestment Tax Credits;
(e) loans, advances purchases of inventory and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations other assets to be sold or securities received in settlement of debts (created used in the ordinary course of business;
(f) owing investments by any Subsidiary of the Borrower in the Borrower and investments by any Loan Party or any Restricted Subsidiary in any Loan Party or any Restricted Subsidiary (including, but not limited to, loans from a Restricted Subsidiary to another Restricted Subsidiary);
(g) investments by the Borrower and its Subsidiaries in the Equity Interests of their Subsidiaries to the extent outstanding as of the Effective Date;
(h) loans and advances to employees in the ordinary course of business not exceeding $10,000,000 in the aggregate;
(i) investments in the form of Swap Agreements permitted by Section 6.01;
(j) deposits to secure bids, tenders, utilities, vendors, leases, licenses, statutory obligations, surety and appeal bonds and other deposits of like nature arising in the ordinary course of business;
(k) Investments by any Loan Party in a Receivables Financing SPC made in connection with a Permitted Receivables Financing;
(l) Investments by the Borrower and its Subsidiaries in a Captive Insurance Company in a cumulative amount from the Effective Date not to exceed $75,000,000;
(m) additional Investments up to but not exceeding $80,000,000 in the aggregate during each fiscal year, including investments in Unrestricted Subsidiaries; provided, however, that notwithstanding the foregoing, the Borrower shall be permitted to make additional investments in Unrestricted Subsidiaries during any fiscal year in an amount equal to the aggregate amount of dividends and other distributions received by the Borrower or its Restricted Subsidiaries from Unrestricted Subsidiaries and payments of Indebtedness by an Unrestricted Subsidiary to the Borrower or any Subsidiarya Restricted Subsidiary during such fiscal year; and
(n) Investments by the Borrower or any of its Restricted Subsidiaries, each of which (i) mergers, consolidations existed before the time of acquisition of the Person or assets of the Person who made such investment and other transactions permitted under Section 6.02, so long as same do (ii) was not cause the Borrower to be made in violation anticipation of any provision of this Section 6.03. The loans and investments described above may be purchased or acquired, directly or indirectly, through partnerships, joint ventures, or otherwisesuch acquisition.
Appears in 1 contract
Samples: Credit Agreement (Dean Foods Co)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unitunit (whether through purchase of assets, not including receivables, deposits merger or prepaid itemsotherwise), except:
(a) cash, Cash Equivalents and Permitted InvestmentsAcquisitions;
(b) investments in existence on the capital stock of new or existing Subsidiaries Closing Date and intercompany loans between or among the Borrower and/or its Subsidiariesdescribed in Schedule 8.04;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Equity Percentage for that Unconsolidated Affiliate), and in other real estate investment trusts (at market value)operating deposit accounts with depository institutions;
(d) loans, advances and extensions of credit to Affiliates of the Borrower that are Mortgage Notes or are used to purchase TIF obligationsinvestments received in connection with a disposition permitted under Section 8.05;
(e) loans, advances purchases of inventory and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations other assets to be sold or securities received in settlement of debts (created used in the ordinary course of business;
(f) owing investments by any Loan Party or any Restricted Subsidiary in any Loan Party or any Restricted Subsidiary (including, but not limited to, loans from a Restricted Subsidiary to another Restricted Subsidiary);
(g) investments by the Borrower and its Restricted Subsidiaries in the Equity Interests of their Subsidiaries to the extent outstanding as of the Closing Date;
(h) loans and advances to employees in the ordinary course of business not exceeding $10,000,000 in the aggregate;
(i) investments in the form of Swap Contracts permitted by Section 8.01;
(j) deposits to secure bids, tenders, utilities, vendors, leases, licenses, statutory obligations, surety and appeal bonds and other deposits of like nature arising in the ordinary course of business;
(k) investments by any Receivables Financing SPC or any Loan Party in a Receivables Financing SPC in each case made in connection with a Permitted Receivables Financing, and loans permitted by the applicable Permitted Receivables Financing that are made by a Loan Party to a Receivables Financing SPC or by a Receivables Financing SPC to a Loan Party in connection therewith;
(l) investments acquired through a Permitted Acquisition, each of which (i) existed before the time of acquisition of the Person or assets of the Person who made such investment and (ii) was not made in anticipation of such acquisition;
(m) the Farm Credit Equities and any other stock or securities of, or Investments in, a Farm Credit Lender or its investment services or programs;
(n) investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors or other disputes with customers or suppliers to the extent reasonably necessary in order to prevent or limit loss and investments consisting of the prepayment of suppliers and service providers on customary terms in the ordinary course of business;
(o) Guarantees permitted by Section 8.01;
(p) to the extent permitted by Section 8.05, non-cash consideration received in connection with sales or dispositions;
(q) to the extent constituting an investment by such Person, the payment, prepayment, redemption or acquisition for value of Indebtedness of such Person permitted by this Agreement;
(r) investments to the extent made with (i) Equity Interests of the Borrower or (ii) the cash proceeds of an Equity Issuance by the Borrower, so long as such investment is consummated within 90 days of such Equity Issuance;
(s) investments in Convertible Bond Hedge Transactions and Capped Call Transactions;
(t) additional investments in Unrestricted Subsidiaries during any fiscal year in an amount equal to the aggregate amount of dividends and other distributions received by the Borrower or its Restricted Subsidiaries from Unrestricted Subsidiaries and payments of Indebtedness by an Unrestricted Subsidiary to the Borrower or any Subsidiarya Restricted Subsidiary during such fiscal year; and
(u) additional investments in an aggregate amount not to exceed (i) mergersduring the term of this Agreement, consolidations $1,000,000,000 and other transactions permitted under Section 6.02(ii) during any fiscal year, so long as same do the Annual Investment Limitation for such fiscal year; provided that to the extent that (A) subsequent to any such investment but not cause later than 90 days thereafter, the Borrower consummates an Equity Issuance during such fiscal year and (B) the Borrower promptly (and in any event within three Business Days following receipt thereof) repays the Loans with the net cash proceeds of such Equity Issuance, the amount of such investment (to the extent not in excess of the amount of such prepayment) shall be in violation deemed not to have reduced the Annual Investment Limitation for such fiscal year. As used herein, “Annual Investment Limitation” means, for any fiscal year of the Borrower, the greater of (x) $100,000,000 and (y) 15% of Consolidated Tangible Assets as of the later of the Initial Funding Date or the first day of such fiscal year. For purposes of covenant compliance, the amount of any provision investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of this Section 6.03. The loans such investment, less any amount repaid, returned, distributed or otherwise received in respect of any investment, in each case, in cash, and investments described above may the amount of any Investment constituting a Guarantee shall be purchased or acquired, directly or indirectly, through partnerships, joint ventures, or otherwisedetermined as stated in the definition of “Guarantee”.
Appears in 1 contract
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly–Owned Subsidiary prior to such merger) any capital stockEquity Interests in, or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, or make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, not including receivables, deposits or prepaid items, except:
(a) Permitted InvestmentsInvestments held by the Borrower or any Subsidiary in the form of cash equivalents or short-term marketable debt securities;
(b) investments, loans and advances existing on the date hereof and set forth on Schedule 5.23, to the extent such investments in the capital stock would not be permitted under any other clause of new or existing Subsidiaries and intercompany loans between or among the Borrower and/or its Subsidiariesthis Section;
(c) investments by the Borrower and its Subsidiaries in Unconsolidated Affiliates (valued at an amount equal Equity Interests in their respective Subsidiaries, provided that any such Equity Interests issued by a Material Subsidiary shall be pledged to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Equity Percentage for that Unconsolidated Affiliate), and in other real estate investment trusts (at market value)extent required hereby;
(d) loans, loans or advances and extensions of credit to Affiliates of made by the Borrower that are Mortgage Notes to any Subsidiary and made by any Subsidiary to the Borrower or are used to purchase TIF obligationsany other Subsidiary in accordance with the limitations set forth in Section 5.12;
(e) loans, loans or advances and extensions made by the Borrower to third parties other than Subsidiaries; provided that the Dollar Equivalent of credit that are the aggregate outstanding amount of all Indebtedness permitted under the permissions of this subclause (e) shall not included in clause (d)at any time exceed $25,000,000;
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations or securities investments received in connection with the bankruptcy or reorganization of, or settlement of debts (created delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) owing to transactions permitted by Section 5.10;
(h) extensions of trade credit in the Borrower or any Subsidiary; andordinary course of business;
(i) mergersinvestments in the Equity Interests in the special purpose entities established under the Receivable Securitizations permitted by Section 5.12; provided that, consolidations the aggregate amount of cash invested in all such entities shall not exceed $1,000,000;
(j) Borrower or any Subsidiary may purchase, hold or acquire any Equity Interests in, or evidences of Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, or make or permit to exist any loans or advances to, or make or permit to exist any other investment or any other interest in, any other Person; provided that, the sum of the following made, acquired or held under the permissions of this clause (j) shall not exceed $10,000,000 at any time: (i) the aggregate amount paid to acquire the Equity Interests, other securities, other investments or other interest in Persons; plus (ii) the aggregate outstanding principal amount of any such Indebtedness and other transactions permitted under Section 6.02loans and advances;
(k) if no Default or Event of Default exists or would result therefrom, Borrower and any Subsidiary may acquire all the Equity Interests of any Person or all or substantially all of the assets of any Person or the assets of a Person constituting a business unit if:
(i) The proposed acquisition is an acquisition of the Equity Interests of a Target, the acquisition is structured so long as same do not cause that the Target will become a Wholly-Owned Subsidiary or will, simultaneously with the acquisition be merged into the Borrower or a Wholly-Owned Subsidiary. If the proposed acquisition is an acquisition of a business unit or all or substantially all of the assets of a Person, the acquisition will be structured so that Borrower or one or more Wholly-Owned Subsidiaries will acquire the assets;
(ii) The Purchase Price (as defined below) for the proposed acquisition in question together with the Purchase Prices paid for all acquisitions consummated in the most recent twelve month period does not exceed a Dollar Equivalent amount equal to EBITDA for such period; provided that if as of the date of any proposed acquisition, (A) the unsecured senior debt rating of the Borrower has been upgraded to BBB or better by S&P and Baa2 or better by Mxxxx’x; (B) the Borrower has retained those ratings for more than 6 months; and (C) such debt is not on negative watch by any rating agency which has issued the Borrower such debt rating, then the restrictions contained in this clause (ii) shall not apply; provided further, however, if at any time thereafter: (a) the unsecured senior debt rating of the Borrower has been downgraded below BBB by S&P or below Baa2 by Mxxxx’x or (b) such debt is on negative watch by any rating agency which has issued the Borrower such debt rating, then the restrictions contained in this clause (ii) shall apply to any proposed acquisition thereafter consummated (the term “Purchase Price” means, as of any date of determination and with respect to a proposed acquisition, the purchase price to be in violation of any provision of this Section 6.03. The loans and investments described above may be purchased paid for the Target or acquiredits assets, directly including all cash consideration paid (whether classified as purchase price, non-compete or indirectly, through partnerships, joint ventures, consulting payments or otherwise.), the value of all other assets to be transferred by the purchaser in connection with such acquisition to the seller (including any stock issued to the seller) all valued in accordance with the applicable purchase agreement and the outstanding principal amount of all Indebtedness of the Target or that the purchaser assumed or acquired in connection with such acquisition);
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Lennox International Inc)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, not including receivables, deposits or prepaid items, except:
(a) Permitted Investments;
(b) investments in existing on the capital stock of new or existing Subsidiaries date hereof and intercompany loans between or among the Borrower and/or its Subsidiariesset forth on Schedule 6.04;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Borrower and its Subsidiaries in Equity Percentage for that Unconsolidated Affiliate), and Interests in other real estate investment trusts (at market value)their respective Subsidiaries;
(d) loans, loans or advances and extensions of credit to Affiliates of made by the Borrower to any Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary; provided that are Mortgage Notes or are used such loans and advances shall be subject to purchase TIF obligationsthe conditions set forth in Section 6.01(c);
(e) loans, advances and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations or securities investments received in connection with the bankruptcy or reorganization of, or settlement of debts (created delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(f) owing notes and other non–cash consideration received as part of the purchase price of assets disposed of pursuant to Section 6.05;
(g) extension of trade credit, loans, notes receivable and other extensions of credit to subcontractors, suppliers or customers, each in the Borrower or any Subsidiary; andordinary course of business;
(h) Swap Agreements permitted by Section 6.07;
(i) mergersloans and advances to officers, consolidations directors, and other transactions permitted under Section 6.02, so long as same do not cause employees of the Borrower and the Subsidiaries made in the ordinary course of business for travel and entertainment expenses, relocation costs and similar purposes up to be a maximum for all such loans and advances of $15,000,000 in violation the aggregate at any one time outstanding;
(j) endorsements of items for collection or deposit in the ordinary course of business;
(k) Borrower or a Subsidiary may purchase, hold or acquire (including pursuant to a merger) all the Equity Interests in a Person and may purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any provision other Person or all or substantially all of this Section 6.03. The loans and investments described above may be purchased the assets of a division or acquiredbranch of such Person, directly or indirectlyif, through partnerships, joint ventures, or otherwise.with respect to each such acquisition:
Appears in 1 contract
Samples: Credit Facility Agreement (Lennox International Inc)
Investments, Loans, Advances and Acquisitions. The Borrower will not, and will not permit any of its the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Subsidiary prior to such merger) any capital stockCapital Stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, not including receivables, deposits or prepaid items, except:
(a) Permitted Investments;
(b) investments in investments, loans and advances existing on the capital stock date hereof and set forth on Schedule 6.04 and extensions, renewals or reinvestments thereof, so long as the aggregate amount of new or existing Subsidiaries all such investments, loans and intercompany advances pursuant to this clause (b) is not increased at any time above the amount of such investments, loans between or among and advances on the Borrower and/or its Subsidiariesdate hereof;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to the Value of each Unconsolidated Affiliate’s Real Property multiplied by the Borrower and the Subsidiaries in Equity Percentage for that Unconsolidated Affiliate), and Interests in other real estate investment trusts (at market value)their respective Subsidiaries;
(d) loans, loans or advances and extensions of credit to Affiliates of made by the Borrower to any Subsidiary or made by any Subsidiary to the Borrower or any other Subsidiary; provided, that are Mortgage Notes any such loans or are used advances made to purchase TIF obligationsthe Borrower shall be Subordinated Debt;
(e) loans, advances and extensions of credit that are not included in clause (d);
(f) undeveloped land;
(g) Real Property;
(h) capital stock, obligations or securities investments received in connection with the bankruptcy or reorganization of, or settlement of debts (created delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(f) owing investments by the Borrower and the Subsidiaries (other than the Millennium Entities) in the Millennium Entities in an amount not to exceed $10,000,000; and investments by any Millennium Entity in another Millennium Entity;
(g) extensions of trade credit and asset purchases in the ordinary course of business;
(h) to the extent permitted by applicable law, loans and advances to officers, directors and employees of the Borrower or any SubsidiarySubsidiary (i) to finance the purchase of Capital Stock of the Borrower or any direct or indirect shareholder of the Borrower; and (ii) for additional purposes not contemplated by subclause (i) above in an aggregate principal amount at any time outstanding with respect to this clause (ii) not exceeding $5,000,000;
(i) Permitted Acquisitions; provided that the Borrower shall be in compliance, on a pro forma basis after giving effect to such Permitted Acquisition, with the covenants set forth in Sections 6.12 and 6.13, as such covenants are recomputed as of the last day of the most recently ended fiscal quarter under each such Section as if such Permitted Acquisition had occurred on the first day of the four-fiscal-quarter period ended on such date;
(j) investments to the extent that payment for such investments is made solely with Capital Stock of the Borrower;
(k) Capital Lease Investments;
(l) investments permitted pursuant to Section 6.08;
(m) investments by TEP constituting an acquisition by TEP of the Capital Stock or assets of Southwest Energy or MEG; and
(in) mergersother investments, consolidations loans and other transactions permitted under Section 6.02, so long as same do not cause advances by the Borrower or the Subsidiaries (other than the Millennium Entities) in an amount not to exceed $50,000,000. Notwithstanding anything to the contrary contained above, the Borrower and the Subsidiaries (other than the Millennium Entities) will not be permitted to invest more than $10,000,000 in violation of any provision of this Section 6.03. The loans and investments described above may be purchased or acquired, directly or indirectly, through partnerships, joint ventures, or otherwisethe Millennium Entities after the Original Effective Date.
Appears in 1 contract
Investments, Loans, Advances and Acquisitions. The Borrower Company will not, and will not permit any of its Subsidiaries Subsidiary to, purchasedirectly or indirectly, hold make, retain or acquire have outstanding any investments (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such mergerwhether through purchase of stock or obligations or otherwise) any capital stockin, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances (other than for travel advances and similar cash advances made to employees in the ordinary course of business) to, or make or permit to exist any investment or any other interest in, any other Person, or purchase acquire all or otherwise acquire (in one transaction any substantial part of the assets or a series of transactions) any assets business of any other Person constituting a business unitor division thereof; provided, however, that the foregoing provisions shall not including receivables, deposits or prepaid items, exceptapply to nor operate to prevent:
(a) Permitted Investmentsinvestments in direct obligations of the United States of America or of any agency or instrumentality thereof whose obligations constitute full faith and credit obligations of the United States of America provided that any such obligations shall mature within one year from the date the same are acquired;
(b) investments in commercial paper rated P-1 by Moodx'x Investors Services, Inc. and A-1 by Standard & Poor's Corporation maturing within one year of the capital stock date of new or existing Subsidiaries and intercompany loans between or among the Borrower and/or its Subsidiariesissuance thereof;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to certificates of deposit issued by any United States commercial bank having capital and surplus of not less than $25,000,000 maturing not more than one year from the Value date of each Unconsolidated Affiliate’s Real Property multiplied by the Equity Percentage for that Unconsolidated Affiliate), and in other real estate investment trusts (at market value)acquisition thereof placed with such bank;
(d) loans, advances and investments of any Banking Subsidiary made in accordance with sound banking practices in the ordinary course of its banking or trust business consisting of extensions of credit to Affiliates in the form of the Borrower that are Mortgage Notes or are used to purchase TIF obligationsloans, acceptances, repurchase agreements, letter of credit and similar transactions;
(e) loans, advances investments of any Banking Subsidiary made in the ordinary course of its banking or trust business consisting of marketable securities and extensions of credit that are not included money-market instruments which it is permitted to hold and invest in clause (d)under applicable law and regulation;
(f) undeveloped landinvestments of the Borrowing Subsidiary made in the ordinary course of its business consisting of residential mortgage loans, servicing rights and similar assets;
(g) Real Property;one or more non-hostile acquisitions by the Company of any banks or thrifts with an aggregate purchase price (whether in cash, assumed liabilities or otherwise, but excluding from such determination the value of equity securities of the Company issued to the sellers in connection with any such transaction) for all such transactions during the term of this Agreement not exceeding $5,000,000; and
(h) capital stockinvestments, obligations or securities received in settlement of debts (created in the ordinary course of business) owing to the Borrower or any Subsidiary; and
(i) mergers, consolidations loans and other transactions advances not otherwise permitted under Section 6.02, so long as same do not cause the Borrower to be in violation of any provision of by this Section 6.03. The loans and investments described above may be purchased or acquired, directly or indirectly, through partnerships, joint ventures, or otherwiseaggregating not more than $2,000,000 at any one time outstanding.
Appears in 1 contract