Investments, Loans, Advances and Acquisitions. Purchase, hold or acquire any Capital Stock, evidences of Indebtedness or other securities of (including any option, warrant or other right to acquire any of the foregoing), make or permit to exist any loans or advances to, Guarantee any obligations of, be liable in respect of any obligation under any Interest/Exchange Rate Protection Agreement or Commodity Rate Protection Agreement entered into to limit risks or to control costs or expenses arising in the business of another person or to convert fixed rate obligations of another person to floating rate obligations, or make or permit to exist any investment or any other interest in, any other person (including by means of a disposition of part but not all the Capital Stock of any Subsidiary under Section 6.05(i)), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person constituting a business unit (each of the foregoing transactions, an “Investment”), except: (a) Investments (i) existing on the Effective Date in the Capital Stock of the Subsidiaries; (ii) by GrafTech in the Capital Stock of Seadrift, GrafTech USA or Holdings; (iii) by any Subsidiary Loan Party in any Subsidiary Loan Party (so long as (A) such person shall remain a Loan Party after giving effect to such Investment, (B) such person is not an Excluded Foreign Loan Party, and (C) any such Investment in Swissco arising as a substantially contemporaneous consequence of the making of such Investment shall not be permitted under this paragraph (a) and must be permitted under another paragraph of this Section 6.04); (iv) by any Subsidiary that is not a Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment); and (v) if no Default or Event of Default exists or will exist immediately after giving effect to such Investment, by any Excluded Foreign Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment); (b) Permitted Investments and Investments that were Permitted Investments when made; (c) Investments arising out of the receipt by any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05; provided, however, that such consideration (if the stated amount or value thereof is in excess of $1,000,000) is pledged upon receipt pursuant to the Pledge Agreements to the extent required thereby; (d) (i) intercompany loans to a Borrower or Subsidiary Loan Parties that comply with Section 6.01 (including any requirement that such Indebtedness be permitted under one or more specified paragraphs of this Section 6.04), and intercompany loans to GrafTech that comply with Section 6.06 and (ii) intercompany loans by Swissco to its Subsidiaries in an aggregate amount not to exceed (A) $50,000,000 with respect to the aggregate of such Investments made to any one Subsidiary of Swissco and (B) $100,000,000 with respect to the aggregate of such Investments made to all Subsidiaries of Swissco; (e) (i) loans and advances to employees of GrafTech, the Borrowers or the other Subsidiaries not to exceed $6,000,000 in the aggregate at any time outstanding (excluding up to $1,000,000 in loans existing on the Effective Date to former employees) and (ii) advances of payroll payments and expenses to employees in the ordinary course of business; (i) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and (ii) prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of GrafTech and the Subsidiaries; (g) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted pursuant to Section 6.01(a)(iii), 6.01(b)(iv) or 6.01(c)(iv), and Cash Management Arrangements and Guarantees, letters of credit and bank guarantees in respect of Cash Management Arrangements permitted under Section 6.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangements permitted under Section 6.02(q); (h) Investments, other than Investments listed in paragraphs (a) through (g) of this Section, existing on the Effective Date and set forth on Schedule 6.04; (i) Investments resulting from pledges and deposits referred to in Section 6.02(g) or (h); (j) any Investment constituting a Permitted Subsidiary Investment made after the Effective Date; provided, that (x) the Leverage Ratio as of the last day of the most recent fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (b) (recomputed on a pro forma basis after giving effect to such Investment as if such Investment had occurred on the first day of the relevant period for such computation) is less than or equal to 3.25 to 1.00, and (y) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses; (k) any Investment made after the Effective Date constituting a Permitted Subsidiary Investment in a Subsidiary (or a business to become a Subsidiary after giving effect to such Investment) that is engaged in the business of manufacturing graphite electrodes or is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Effective Date and not more than two years prior to the date of such Investment and not otherwise used during such two-year period under Section 6.09(d)(v) or to make any Investment under this Section 6.04(k) or Section 6.04(m); (l) any Investment made after the Effective Date constituting a Permitted Subsidiary Investment made with Available Disposition Proceeds; provided, however, that (i) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses and after giving effect to any increase in the Available Commitments due to the making of such Investment, and (ii) the aggregate amount of consideration paid in respect of Permitted Subsidiary Investments that are not Permitted Acquisitions and that are made in reliance on this paragraph (l) shall not exceed $50,000,000; (m) any Investment in an Unrestricted Subsidiary or constituting a Permitted Subsidiary Investment made after the Effective Date in a person that is not a Subsidiary or is neither engaged in the business of manufacturing graphite electrodes nor is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Effective Date and not more than 90 days prior to the date on which definitive documentation for such Investment is entered into and not otherwise used during such 90-day period under Section 6.09(d)(v) or to make any Investment under Section 6.04(k) or this Section 6.04(m); (n) Investments constituting Permitted Subsidiary Investments or Investments in Unrestricted Subsidiaries made after the Effective Date with Capital Stock of GrafTech (other than Disqualified Stock); (o) Guarantees by GrafTech of Supply Chain Arrangements and obligations of GrafTech, a Borrower or any other Subsidiary that do not constitute Indebtedness and in each case are entered into in the ordinary course of business; and (p) Investments consisting of Indebtedness permitted under Sections 6.01(a)(xii), 6.01(b)(v) and 6.01(c)(v), unsecured Guarantees permitted under Section 6.01(b)(iv) and any Guarantee by any Loan Party created under a Loan Document. (q) Investments resulting from contributions to Swissco referred to in Section 6.05(f); (r) any cash Investment in an Unrestricted Subsidiary made after the Effective Date; provided that the aggregate amount of all such Investments made or held in Unrestricted Subsidiaries shall not exceed (net of return of capital of (but not return on) any such Investment) $30,000,000 at any time. Notwithstanding the foregoing, under no circumstances shall any Foreign Subsidiary own any of the Capital Stock of any Domestic Subsidiary except as permitted by and in accordance with Section 9.19. For the avoidance of doubt (A) in the event and to the extent that substantially simultaneously with the making of any new Investment, the investor receives a return of capital in respect of an existing Investment in the same person in which such new Investment is being made, such new Investment will be deemed to be a continuation of such existing Investment for purposes of determining compliance with the provisions of this Section 6.04, and (B) in the event and to the extent that substantially simultaneously with the making of any new Investment by a Loan Party in Swissco (x) with the proceeds of Indebtedness incurred under the General Debt Basket, Swissco makes an Investment under Section 6.01(j) with such proceeds in a Foreign Subsidiary, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall not constitute an additional usage of the basket under Section 6.04(d), (j), or (y) with Equity Proceeds or Available Disposition Proceeds, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall be deemed to have been made with such Equity Proceeds or Available Disposition Proceeds.
Appears in 1 contract
Investments, Loans, Advances and Acquisitions. PurchaseNo Loan Party will, nor will it permit any Subsidiary to, form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any Capital Stockmerger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any Equity Interests, evidences of Indebtedness indebtedness or other securities of (including any option, warrant or other right to acquire any of the foregoing)) of, make or permit to exist any loans or advances to, Guarantee any obligations of, be liable in respect of any obligation under any Interest/Exchange Rate Protection Agreement or Commodity Rate Protection Agreement entered into to limit risks or to control costs or expenses arising in the business of another person or to convert fixed rate obligations of another person to floating rate obligations, or make or permit to exist any investment or any other interest in, any other person (including by means of a disposition of part but not all the Capital Stock of any Subsidiary under Section 6.05(i))Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person Person constituting a business unit (each whether through purchase of the foregoing transactionsassets, an “Investment”merger or otherwise), except:
(a) Investments (i) existing on the Effective Date Permitted Investments, subject to a perfected security interest in the Capital Stock favor of the Subsidiaries; (ii) by GrafTech in Administrative Agent for the Capital Stock of Seadrift, GrafTech USA or Holdings; (iii) by any Subsidiary Loan Party in any Subsidiary Loan Party (so long as (A) such person shall remain a Loan Party after giving effect to such Investment, (B) such person is not an Excluded Foreign Loan Party, and (C) any such Investment in Swissco arising as a substantially contemporaneous consequence benefit of the making of such Investment shall not be permitted under this paragraph (a) and must be permitted under another paragraph of this Section 6.04); (iv) by any Subsidiary that is not a Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment); and (v) if no Default or Event of Default exists or will exist immediately after giving effect to such Investment, by any Excluded Foreign Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment)Secured Parties;
(b) Permitted Investments investments in existence on the date hereof and Investments that were Permitted Investments when madedescribed in Schedule 6.04;
(c) Investments arising out investments by the Loan Parties and their Subsidiaries in Equity Interests in their respective Subsidiaries, provided that (i) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Security Agreements (subject to the limitations applicable to Equity Interests of a Foreign Subsidiary referred to in Section 5.14) and (ii) the receipt aggregate amount of investments by any Subsidiary of non-cash consideration for the sale of assets Loan Parties in Subsidiaries that are not Loan Parties (together with outstanding intercompany loans permitted under Section 6.05; provided, however, that such consideration 6.04(d) and outstanding Guarantees permitted under Section 6.04(e)) shall not exceed $[REDACTED] at any time outstanding (if the stated amount in each case determined without regard to any write-downs or value thereof is in excess of $1,000,000) is pledged upon receipt pursuant to the Pledge Agreements to the extent required therebywrite-offs);
(d) (i) intercompany loans or advances made by any Loan Party to any Subsidiary and made by any Subsidiary to a Borrower Loan Party or Subsidiary any other Subsidiary, provided that the amount of such loans and advances made by Loan Parties to Subsidiaries that comply are not Loan Parties (together with Section 6.01 (including any requirement that such Indebtedness be outstanding investments permitted under one or more specified paragraphs of this Section 6.046.04(c) and outstanding Guarantees permitted under Section 6.04(e), and intercompany loans to GrafTech that comply with Section 6.06 and ) shall not exceed $[REDACTED] at any time outstanding (ii) intercompany loans by Swissco to its Subsidiaries in an aggregate amount not to exceed (A) $50,000,000 with respect to the aggregate of such Investments made each case determined without regard to any one Subsidiary of Swissco and (B) $100,000,000 with respect to the aggregate of such Investments made to all Subsidiaries of Swisscowrite-downs or write-offs);
(e) Guarantees constituting Indebtedness permitted by Section 6.01, provided that (i) the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party (together with outstanding investments permitted under clause (ii) to the proviso to Section 6.04(c) and outstanding intercompany loans and advances permitted under clause (ii) to employees of GrafTech, the Borrowers or the other Subsidiaries proviso to Section 6.04(d)) shall not to exceed $6,000,000 in the aggregate [REDACTED] at any time outstanding (excluding up in each case determined without regard to $1,000,000 in loans existing on the Effective Date to former employees) and (ii) advances of payroll payments and expenses to employees in the ordinary course of businessany write-downs or write-offs);
(if) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction loans or partial satisfaction thereof from financially troubled account debtors advances made by a Loan Party to the extent reasonably necessary in order to prevent or limit loss and (ii) prepayments and other credits to suppliers made its employees on an arms-length basis in the ordinary course of business consistent with the past practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of GrafTech $[REDACTED] in the aggregate made per employee during the term of this Agreement and a maximum of $[REDACTED] in the Subsidiariesaggregate made for all employees during the term of this Agreement;
(g) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted notes payable, or stock or other securities issued by Account Debtors to a Loan Party pursuant to Section 6.01(a)(iii), 6.01(b)(iv) or 6.01(c)(iv), and Cash Management Arrangements and Guarantees, letters of credit and bank guarantees in negotiated agreements with respect of Cash Management Arrangements permitted under Section 6.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangements permitted under Section 6.02(q);
(h) Investments, other than Investments listed in paragraphs (a) through (g) of this Section, existing on the Effective Date and set forth on Schedule 6.04;
(i) Investments resulting from pledges and deposits referred to in Section 6.02(g) or (h);
(j) any Investment constituting a Permitted Subsidiary Investment made after the Effective Date; provided, that (x) the Leverage Ratio as of the last day of the most recent fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (b) (recomputed on a pro forma basis after giving effect to such Investment as if such Investment had occurred on the first day of the relevant period for such computation) is less than or equal to 3.25 to 1.00, and (y) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses;
(k) any Investment made after the Effective Date constituting a Permitted Subsidiary Investment in a Subsidiary (or a business to become a Subsidiary after giving effect to such Investment) that is engaged in the business of manufacturing graphite electrodes or is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Effective Date and not more than two years prior to the date settlement of such Investment and not otherwise used during such two-year period under Section 6.09(d)(v) or to make any Investment under this Section 6.04(k) or Section 6.04(m);
(l) any Investment made after the Effective Date constituting a Permitted Subsidiary Investment made with Available Disposition Proceeds; provided, however, that (i) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses and after giving effect to any increase in the Available Commitments due to the making of such Investment, and (ii) the aggregate amount of consideration paid in respect of Permitted Subsidiary Investments that are not Permitted Acquisitions and that are made in reliance on this paragraph (l) shall not exceed $50,000,000;
(m) any Investment in an Unrestricted Subsidiary or constituting a Permitted Subsidiary Investment made after the Effective Date in a person that is not a Subsidiary or is neither engaged in the business of manufacturing graphite electrodes nor is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Effective Date and not more than 90 days prior to the date on which definitive documentation for such Investment is entered into and not otherwise used during such 90-day period under Section 6.09(d)(v) or to make any Investment under Section 6.04(k) or this Section 6.04(m);
(n) Investments constituting Permitted Subsidiary Investments or Investments in Unrestricted Subsidiaries made after the Effective Date with Capital Stock of GrafTech (other than Disqualified Stock);
(o) Guarantees by GrafTech of Supply Chain Arrangements and obligations of GrafTech, a Borrower or any other Subsidiary that do not constitute Indebtedness and in each case are entered into Account Debtor’s Accounts in the ordinary course of business, consistent with past practices;
(h) investments in the form of Swap Agreements permitted by Section 6.07;
(i) investments of any Person existing at the time such Person becomes a Subsidiary of thea Borrower or consolidates or merges with thea Borrower or any Subsidiary (including in connection with a permitted acquisition), so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(j) investments received in connection with the disposition of assets permitted by Section 6.05;
(k) investments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”;
(l) investments consisting of a Permitted Acquisition;
(m) loans or advances constituting JV Entity Permitted Debt; and
(pn) Investments investments consisting of Indebtedness permitted under Sections 6.01(a)(xii), 6.01(b)(v) and 6.01(c)(v), unsecured Guarantees permitted under Section 6.01(b)(iv) and any Guarantee by any Loan Party created under a Loan Document.
(q) Investments resulting from contributions to Swissco referred to in Section 6.05(f);
(r) any cash Investment in an Unrestricted Subsidiary made after the Effective Date; provided that the aggregate amount of all such Investments made or held in Unrestricted Subsidiaries shall not exceed (net of return of capital of (but not return on) any such Permitted Minority Investment) $30,000,000 at any time. Notwithstanding the foregoing, under no circumstances shall any Foreign Subsidiary own Loan Party or any of their Subsidiaries shall make any loans or advances to any JV Entity (other than loans or advances constituting JV Entity Permitted Debt), without the Capital Stock of any Domestic Subsidiary except as permitted by and in accordance with Section 9.19. For the avoidance of doubt (A) in the event and to the extent that substantially simultaneously with the making of any new Investment, the investor receives a return of capital in respect of an existing Investment in the same person in which such new Investment is being made, such new Investment will be deemed to be a continuation of such existing Investment for purposes of determining compliance with the provisions of this Section 6.04, and (B) in the event and to the extent that substantially simultaneously with the making of any new Investment by a Loan Party in Swissco (x) with the proceeds of Indebtedness incurred under the General Debt Basket, Swissco makes an Investment under Section 6.01(j) with such proceeds in a Foreign Subsidiary, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall not constitute an additional usage prior written consent of the basket under Section 6.04(d), (j), or (y) with Equity Proceeds or Available Disposition Proceeds, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall be deemed to have been made with such Equity Proceeds or Available Disposition ProceedsRequired Lenders.
Appears in 1 contract
Samples: Credit Agreement (CRH Medical Corp)
Investments, Loans, Advances and Acquisitions. Purchase, hold or acquire any Capital Stock, evidences of Indebtedness or other securities of (including any option, warrant or other right to acquire any of the foregoing), make or permit to exist any loans or advances to, Guarantee any obligations of, be liable in respect of any obligation under any Interest/Exchange Rate Protection Agreement or Commodity Rate Protection Agreement entered into to limit risks or to control costs or expenses arising in the business of another person or to convert fixed rate obligations of another person to floating rate obligations, or make or permit to exist any investment or any other interest in, any other person (including by means of a disposition of part but not all the Capital Stock of any Subsidiary under Section 6.05(i)), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person constituting a business unit (each of the foregoing transactions, an “Investment”), except:
(ai) Investments (i) existing that existed on the Restatement Effective Date in the Capital Stock of the Subsidiaries; (ii) by GrafTech in the Capital Stock of Seadrift, GrafTech USA or Holdingsany Domestic Subsidiary; (iii) by any Subsidiary Loan Party in any Subsidiary Loan Party (so long as (A) such person shall remain a Loan Party after giving effect to such Investment, (B) such person is not an Excluded Foreign Loan Party, and (C) any such Investment in Luxembourg Holdco or Swissco (other than an Investment made by Luxembourg Parent, Luxembourg Holdco or Swissco) arising as a substantially contemporaneous consequence of the making of such Investment shall not be permitted under this paragraph (a) and must be permitted under another paragraph of this Section 6.04); (iv) by any Subsidiary that is not a Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment); and (v) if no Default or Event of Default exists or will exist immediately after giving effect to such Investment, by any Excluded Foreign Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment);
(bj) Permitted Investments and Investments that were Permitted Investments when made;
(ck) Investments arising out of the receipt by any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05; provided, however, that such consideration (if the stated amount or value thereof is in excess of $1,000,000) is pledged upon receipt pursuant to the Pledge Agreements to the extent required thereby;
(dl) (i) intercompany loans to a Borrower or Subsidiary Loan Parties that comply with Section 6.01 (including any requirement that such Indebtedness be permitted under one or more specified paragraphs of this Section 6.04), and intercompany loans to GrafTech that comply with Section 6.06 and (ii) intercompany loans by Luxembourg Parent, Luxembourg Holdco or Swissco to its Subsidiaries Luxembourg Parent or the direct or indirect subsidiaries of Luxembourg Parent in an aggregate amount not to exceed (A) $50,000,000 with respect to the aggregate of such Investments made to any one Subsidiary direct or indirect subsidiary of Swissco Luxembourg Parent and (B) $100,000,000 with respect to the aggregate of such Investments made to all Subsidiaries direct or indirect subsidiaries of SwisscoLuxembourg Parent;
(em) (i) loans and advances to employees of GrafTech, the Borrowers or the other Subsidiaries not to exceed $6,000,000 in the aggregate at any time outstanding (excluding up to $1,000,000 in loans existing on the Restatement Effective Date to former employees) and (ii) advances of payroll payments and expenses to employees in the ordinary course of business;
(i) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and (ii) prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of GrafTech and the Subsidiaries;
(go) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted pursuant to Section 6.01(a)(iii), 6.01(b)(iv) or 6.01(c)(iv), and Cash Management Arrangements and Guarantees, letters of credit and bank guarantees in respect of Cash Management Arrangements permitted under Section 6.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangements permitted under Section 6.02(q);
(hp) Investments, other than Investments listed in paragraphs (a) through (g) of this Section, existing that existed on the Restatement Effective Date and are set forth on Schedule 6.04;
(iq) Investments resulting from pledges and deposits referred to in Section 6.02(g) or (h);
(jr) any Investment constituting a Permitted Subsidiary Investment made after the Restatement Effective Date; provided, that (xi) either (A) the Leverage Ratio as of the last day of the most recent fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (b) (recomputed on a pro forma basis after giving effect to such Investment as if such Investment had occurred on the first day of the relevant period for such computation) is less than or equal to 3.25 to 1.001.00 or (B) such Permitted Subsidiary Investment is a Permitted Acquisition and the amount of such Investment, taken together with the aggregate amount of all other Permitted Subsidiary Investments made pursuant to this clause (B) during the period after the Restatement Effective Date, shall not exceed $400,000,000, and (yii) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses;
(ks) any Investment made after the Restatement Effective Date constituting a Permitted Subsidiary Investment in a Subsidiary (or a business to become a Subsidiary after giving effect to such Investment) that is engaged in the business of manufacturing graphite electrodes or is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Restatement Effective Date and not more than two years prior to the date of such Investment and not otherwise used during such two-year period under Section 6.09(d)(v) or to make any Investment under this Section 6.04(k) or Section 6.04(m);
(lt) any Investment made after the Restatement Effective Date constituting a Permitted Subsidiary Investment made with Available Disposition Proceeds; provided, however, that (i) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses and after giving effect to any increase in the Available Commitments due to the making of such Investment, and (ii) the aggregate amount of consideration paid in respect of Permitted Subsidiary Investments that are not Permitted Acquisitions and that are made in reliance on this paragraph (l) shall not exceed $50,000,000;
(mu) any Investment in an Unrestricted Subsidiary or constituting a Permitted Subsidiary Investment made after the Restatement Effective Date in a person that is not a Subsidiary or is neither engaged in the business of manufacturing graphite electrodes nor is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Restatement Effective Date and not more than 90 days prior to the date on which definitive documentation for such Investment is entered into and not otherwise used during such 90-day period under Section 6.09(d)(v) or to make any Investment under Section 6.04(k) or this Section 6.04(m);
(nv) Investments constituting Permitted Subsidiary Investments or Investments in Unrestricted Subsidiaries made after the Restatement Effective Date with Capital Stock of GrafTech (other than Disqualified Stock);
(ow) Guarantees by GrafTech of Supply Chain Arrangements and obligations of GrafTech, a Borrower or any other Subsidiary that do not constitute Indebtedness and in each case are entered into in the ordinary course of business; and;
(px) Investments consisting of Indebtedness permitted under Sections 6.01(a)(xii), 6.01(b)(v) and 6.01(c)(v), unsecured Guarantees permitted under Section 6.01(b)(iv) and any Guarantee by any Loan Party created under a Loan Document.;
(qy) Investments resulting from contributions to Swissco referred to in Section 6.05(f);
(rz) any cash Investment in an Unrestricted Subsidiary made after the Restatement Effective Date; provided that the aggregate amount of all such Investments made or held in Unrestricted Subsidiaries shall not exceed (net of return of capital of (but not return on) any such Investment) $30,000,000 at any time; and
(aa) Investments constituting intercompany loans to Finance and Luxembourg Holdco (i) of proceeds of Senior Notes and (ii) of proceeds of other Indebtedness to fund Investments permitted under Section 6.04(j)(B). Notwithstanding the foregoing, under no circumstances shall any Foreign Subsidiary own any of the Capital Stock of any Domestic Subsidiary except as permitted by and in accordance with Section 9.19(other than a Luxembourg Finance Subsidiary). For the avoidance of doubt doubt, (A) in the event and to the extent that substantially simultaneously with the making of any new Investment, the investor receives a return of capital in respect of an existing Investment in the same person in which such new Investment is being made, such new Investment will be deemed to be a continuation of such existing Investment for purposes of determining compliance with the provisions of this Section 6.04, and (B) in the event and to the extent that substantially simultaneously with the making of any new Investment by a Loan Party in Luxembourg Parent, Luxembourg Holdco or Swissco (x) with the proceeds of Indebtedness incurred under the General Debt Basket, Luxembourg Parent, Luxembourg Holdco or Swissco makes an Investment under Section 6.01(j6.04(j) with such proceeds in a Foreign Subsidiary, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall not constitute an additional usage of the basket under Section 6.04(d), (j) or 6.04(j), or (y) with Equity Proceeds or Available Disposition Proceeds, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall be deemed to have been made with such Equity Proceeds or Available Disposition Proceeds.
Appears in 1 contract
Investments, Loans, Advances and Acquisitions. Purchase, hold or acquire any Capital Stock, evidences of Indebtedness or other securities of (including any option, warrant or other right to acquire any of the foregoing), make or permit to exist any loans or advances to, Guarantee any obligations of, be liable in respect of any obligation under any Interest/Exchange Rate Protection Agreement or Commodity Rate Protection Agreement entered into to limit risks or to control costs or expenses arising in the business of another person or to convert fixed rate obligations of another person to floating rate obligations, or make or permit to exist any investment or any other interest in, any other person (including by means of a disposition of part but not all the Capital Stock of any Subsidiary under Section 6.05(i7.05(i)), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person constituting a business unit (each of the foregoing transactions, an “Investment”), except:
(a) Investments (i) existing on the Effective Date in the Capital Stock of the Subsidiaries; (ii) by GrafTech in the Capital Stock of Seadrift, GrafTech USA or HoldingsGlobal and Finance; (iii) by Global or any Subsidiary Loan Party in any Subsidiary Loan Party (so long as (A) such person shall remain a Loan Party after giving effect to such Investment, (B) such person is not an Excluded Foreign Loan Party, and (C) any such Investment in Swissco arising as a substantially contemporaneous consequence of the making of such Investment shall not be permitted under this paragraph (a) and must be permitted under another paragraph of this Section 6.047.04); (iv) by any Subsidiary that is not a Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment); and (v) if no Default or Event of Default exists or will exist immediately after giving effect to such Investment, by any Excluded Foreign Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment);
(b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by Global or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.057.05; provided, however, that such consideration (if the stated amount or value thereof is in excess of $1,000,000) is pledged upon receipt pursuant to the Pledge Agreements to the extent required thereby;
(d) (i) intercompany loans to Global, a Borrower or Subsidiary Loan Parties that comply with Section 6.01 7.01 (including any requirement that such Indebtedness be permitted under one or more specified paragraphs a paragraph of this Section 6.047.04), and intercompany loans to GrafTech that comply with Section 6.06 and (ii) intercompany loans by Swissco to its Subsidiaries in an aggregate amount not to exceed (A) $50,000,000 with respect to the aggregate of such Investments made to any one Subsidiary of Swissco and (B) $100,000,000 with respect to the aggregate of such Investments made to all Subsidiaries of Swissco7.06;
(e) (i) loans and advances to employees of GrafTech, Global, the Borrowers or the other Subsidiaries not to exceed $6,000,000 in the aggregate at any time outstanding (excluding up to $1,000,000 in loans existing on the Effective Date to former employees) and (ii) advances of payroll payments and expenses to employees in the ordinary course of business;
(i) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and (ii) prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of GrafTech GrafTech, Global and the Subsidiaries;
(g) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted pursuant to Section 6.01(a)(iii7.01(a)(iii), 6.01(b)(iv7.01(b)(iv) or 6.01(c)(iv7.01(c)(iv), and Cash Management Arrangements and Guarantees, letters of credit and bank guarantees in respect of Cash Management Arrangements permitted under Section 6.01 7.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangements Arrangement permitted under Section 6.02(q7.02(q);
(h) Investments, other than Investments listed in paragraphs (a) through (g) of this Section, existing on the Effective Date and set forth on Schedule 6.047.04;
(i) Investments resulting from pledges and deposits referred to in Section 6.02(g7.02(g) or (h);
(j) any Investment constituting a Permitted Subsidiary Investment or any Investment in an Unrestricted Subsidiary made after the Effective DateDate in respect of which the aggregate amount of consideration (whether cash or property, but excluding consideration consisting of Capital Stock of GrafTech (other than Disqualified Stock)), as valued at the time each such Investment is made, does not for all such Investments exceed (net of any return representing return of capital of (but not return on) any such Investment) at any time $300,000,000 (excluding for purposes of determining compliance with this paragraph (j) Cash Flow Advances by Swissco to Foreign Subsidiaries in an aggregate outstanding amount at any time not to exceed $50,000,000); provided, however, that (x) the Leverage Ratio as aggregate amount of such consideration for all such Investments made or held in Unrestricted Subsidiaries shall not exceed (net of return of capital of (but not return on) any such Investment) $30,000,000 at any time, (y) the aggregate amount of such consideration for all such Permitted Subsidiary Investments made or held in persons in which at the time of determination Global owns, directly or indirectly, less than 90% of the last day outstanding Capital Stock (in each case, at the time of the most recent fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (b) (recomputed on a pro forma basis and immediately after giving effect to such Investment as if Investment) shall not exceed (net of return of capital of (but not return on) any such Investment had occurred on the first day Investment) $125,000,000 at any time, of the relevant period for such computation) is less which no more than $50,000,000 at any time may be invested or equal to 3.25 to 1.00held in persons that are not Subsidiaries, and (yz) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expensesexpenses and after giving effect to any increase in the Available Revolving Commitments due to the making of such Investment;
(k) any Investment made after the Effective Date constituting a Permitted Subsidiary Investment in a Subsidiary (or a business to become a Subsidiary after giving effect to such Investment) that is engaged in the business of manufacturing graphite electrodes or is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Effective Date and not more than two years prior to the date of such Investment and not otherwise used during such two-year period under Section 6.09(d)(v7.09(d)(v) or to make any Investment under this Section 6.04(k7.04(k) or Section 6.04(m(m);
(l) any Investment made after the Effective Date constituting a Permitted Subsidiary Investment made with Available Disposition Proceeds; provided, however, that (i) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses and after giving effect to any increase in the Available Revolving Commitments due to the making of such Investment, and (ii) the aggregate amount of consideration paid in respect of Permitted Subsidiary Investments that are not Permitted Acquisitions and that are made in reliance on this paragraph (l) shall not exceed $50,000,000;
(m) any Investment in an Unrestricted Subsidiary or constituting a Permitted Subsidiary Investment made after the Effective Date in a person that is not a Subsidiary or is neither engaged in the business of manufacturing graphite electrodes nor is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Effective Date and not more than 90 days prior to the date on which definitive documentation for such Investment is entered into and not otherwise used during such 90-day period under Section 6.09(d)(v7.09(d)(v) or to make any Investment under Section 6.04(k7.04(k) or this Section 6.04(m(m);
(n) Investments constituting Permitted Subsidiary Investments or Investments in Unrestricted Subsidiaries made after the Effective Date with Capital Stock of GrafTech (other than Disqualified Stock);
(o) the Specified Acquisition;
(p) Guarantees by GrafTech of Supply Chain Arrangements and obligations of GrafTechGlobal, a Borrower or any other Subsidiary that do not constitute Indebtedness and in each case are entered into in the ordinary course of business; and
(pq) Investments consisting of Indebtedness permitted under Sections 6.01(a)(xii7.01(a)(xii), 6.01(b)(v7.01(b)(v) and 6.01(c)(v7.01(c)(v) and (viii), unsecured Guarantees permitted under Section 6.01(b)(iv7.01(b)(iv) and any Guarantee by any Loan Party created under a Loan Document.
(q) Investments resulting from contributions to Swissco referred to in Section 6.05(f);
(r) any cash Investment in an Unrestricted Subsidiary made after the Effective Date; provided that the aggregate amount of all such Investments made or held in Unrestricted Subsidiaries shall not exceed (net of return of capital of (but not return on) any such Investment) $30,000,000 at any time. Notwithstanding the foregoing, (1) under no circumstances shall any Foreign Subsidiary own any of the Capital Stock of any Domestic Subsidiary except as permitted by and (2) no Investment shall be made if the making of such Investment would result in accordance with Section 9.19an Excess Foreign Transfer. For the avoidance of doubt (A) in the event and to the extent that substantially simultaneously with the making of any new Investment, the investor receives a return of capital in respect of an existing Investment in the same person in which such new Investment is being made, such new Investment will be deemed to be a continuation of such existing Investment for purposes of determining compliance with the provisions of this Section 6.047.04, and (B) in the event and to the extent that substantially simultaneously with the making of any new Investment by a Loan Party in Swissco (x) with the proceeds of Indebtedness incurred under the General Debt Basket, Swissco makes an Investment under Section 6.01(j7.01(j) with such proceeds in a Foreign Subsidiary, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall not constitute an additional usage of the basket under Section 6.04(d), (j7.04(j), or (y) with Equity Proceeds or Available Disposition Proceeds, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall be deemed to have been made with such Equity Proceeds or Available Disposition Proceeds.
Appears in 1 contract
Investments, Loans, Advances and Acquisitions. Purchase, hold or acquire any Capital Stock, evidences of Indebtedness or other securities of (including any option, warrant or other right to acquire any of the foregoing), make or permit to exist any loans or advances to, Guarantee any obligations of, be liable in respect of any obligation under any Interest/Exchange Rate Protection Agreement or Commodity Rate Protection Agreement entered into to limit risks or to control costs or expenses arising in the business of another person or to convert fixed rate obligations of another person to floating rate obligations, or make or permit to exist any investment or any other interest in, any other person (including by means of a disposition of part but not all the Capital Stock of any Subsidiary under Section 6.05(i)), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person constituting a business unit (each of the foregoing transactions, an “Investment”), except:
(a) Investments (i) existing that existed on the Restatement Effective Date in the Capital Stock of the Subsidiaries; (ii) by GrafTech in the Capital Stock of Seadrift, GrafTech USA or Holdingsany Domestic Subsidiary that is a Guarantor; (iii) by any Subsidiary Loan Party in any Subsidiary Loan Party (so long as (A) such person shall remain a Loan Party after giving effect to such Investment, (B) such person is not an Excluded Foreign Loan Party, and (C) any such Investment in Luxembourg Holdco or Swissco (other than an Investment made by Luxembourg Parent, Luxembourg Holdco or Swissco) arising as a substantially contemporaneous consequence of the making of such Investment shall not be permitted under this paragraph (a) and must be permitted under another paragraph of this Section 6.04, and (D) such Investment is made in compliance with the Loan Party Transfer Restriction); (iv) by any Subsidiary that is not a Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment); and (v) if no Default or Event of Default exists or will exist immediately after giving effect to such InvestmentInvestment and if such Investment is made in compliance with the Loan Party Transfer Restriction, by any Excluded Foreign Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment);
(b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05; provided, however, that such consideration (if the stated amount or value thereof is in excess of $1,000,000) is pledged upon receipt pursuant to the Pledge Agreements to the extent required thereby;
(d) (i) intercompany loans to a Borrower or Subsidiary Loan Parties that comply with Section 6.01 (including any requirement that such Indebtedness be permitted under one or more specified paragraphs of this Section 6.04)) and with the Loan Party Transfer Restriction, and intercompany loans to GrafTech that comply with Section 6.06 and (ii) intercompany loans made in compliance with the Loan Party Transfer Restriction by Luxembourg Parent, Luxembourg Holdco or Swissco to its Subsidiaries Luxembourg Parent or the direct or indirect subsidiaries of Luxembourg Parent in an aggregate amount not to exceed (A) $50,000,000 with respect to the aggregate of such Investments made to any one Subsidiary direct or indirect subsidiary of Swissco Luxembourg Parent and (B) $100,000,000 with respect to the aggregate of such Investments made to all Subsidiaries direct or indirect subsidiaries of SwisscoLuxembourg Parent;
(e) (i) loans and advances to employees of GrafTech, the Borrowers or the other Subsidiaries not to exceed $6,000,000 in the aggregate at any time outstanding (excluding up to $1,000,000 in loans existing on the Restatement Effective Date to former employees) and (ii) advances of payroll payments and expenses to employees in the ordinary course of business;
(i) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and (ii) prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of GrafTech and the Subsidiaries;
(g) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted pursuant to Section 6.01(a)(iii), 6.01(b)(iv) or 6.01(c)(iv6.01(a)(iv), and Cash Management Arrangements and Guarantees, letters of credit and bank guarantees in respect of Cash Management Arrangements permitted under Section 6.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangements permitted under Section 6.02(q);
(h) Investments, other than Investments listed in paragraphs (a) through (g) of this Section, existing that existed on the Restatement Effective Date and are set forth on Schedule 6.04;
(i) Investments resulting from pledges and deposits referred to in Section 6.02(g) or (h);
(j) any Investment constituting a Permitted Subsidiary Investment made after the Restatement Effective Date; provided, that (xi) either (A) the Leverage Ratio as of the last day of the most recent fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (b) (recomputed on a pro forma basis after giving effect to such Investment as if such Investment had occurred on the first day of the relevant period for such computation) is less than or equal to 3.25 to 1.001.00 or (B) such Permitted Subsidiary Investment is a Permitted Acquisition and the amount of such Investment, and taken together with the aggregate amount of all other Permitted Subsidiary Investments made pursuant to this clause (yB) during the period after the Restatement Effective Date, shall not exceed $400,000,000, (ii) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expensesexpenses and (iii) such Investment shall be made in compliance with the Loan Party Transfer Restriction;
(k) any Investment made after the Restatement Effective Date constituting a Permitted Subsidiary Investment in a Subsidiary (or a business to become a Subsidiary after giving effect to such Investment) that is engaged in the business of manufacturing graphite electrodes or is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that (i) such Investment is made with Equity Proceeds received after the Restatement Effective Date and not more than two years prior to the date of such Investment and not otherwise used during such two-year period under Section 6.09(d)(v) or to make any Investment under this Section 6.04(k) or Section 6.04(m)) and (ii) such Investment is made in compliance with the Loan Party Transfer Restriction;
(l) any Investment made after the Restatement Effective Date constituting a Permitted Subsidiary Investment made with Available Disposition Proceeds; provided, however, that (i) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses and after giving effect to any increase in the unused Available Commitments due to the making of such Investment, and (ii) the aggregate amount of consideration paid in respect of Permitted Subsidiary Investments that are not Permitted Acquisitions and that are made in reliance on this paragraph (l) shall not exceed $50,000,00050,000,000 and (iii) such Investment is made in compliance with the Loan Party Transfer Restriction;
(m) any Investment in an Unrestricted Subsidiary made prior to the Third Amendment Effective Date or any Investment constituting a Permitted Subsidiary Investment made after the Restatement Effective Date in a person that is not a Subsidiary or is neither engaged in the business of manufacturing graphite electrodes nor is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, in each case that (i) such Investment is made with Equity Proceeds received after the Restatement Effective Date and not more than 90 days prior to the date on which definitive documentation for such Investment is entered into and not otherwise used during such 90-day period under Section 6.09(d)(v) or to make any Investment under Section 6.04(k) or this Section 6.04(m)) and (ii) such Investment is made in compliance with the Loan Party Transfer Restriction;
(n) Investments in an Unrestricted Subsidiaries made prior to the Third Amendment Effective Date and Investments constituting Permitted Subsidiary Investments or Investments and in Unrestricted Subsidiaries each case made (i) after the Restatement Effective Date with Capital Stock of GrafTech (other than Disqualified Stock)) and (ii) in compliance with the Loan Party Transfer Restriction;
(o) Guarantees by GrafTech of Supply Chain Arrangements and obligations of GrafTech, a Borrower or any other Subsidiary that do not constitute Indebtedness and in each case are entered into in the ordinary course of business; and;
(p) Investments consisting of Indebtedness permitted under Sections 6.01(a)(xii), 6.01(b)(v) and 6.01(c)(v), unsecured Guarantees permitted under Section 6.01(b)(iv) and any Guarantee by any Loan Party created under a Loan Document.;
(q) Investments resulting from contributions to Swissco referred to in Section 6.05(f)[reserved];
(r) any cash Investment in an Unrestricted Subsidiary made after the Restatement Effective Date and prior to the Third Amendment Effective Date; provided that the aggregate amount of all such Investments made or held in Unrestricted Subsidiaries shall not exceed (net of return of capital of (but not return on) any such Investment) $30,000,000 at any time; and
(s) Investments constituting intercompany loans to Finance and Luxembourg Holdco (i) of proceeds of Senior Notes and (ii) of proceeds of other Indebtedness to fund Investments made in reliance on Section 6.04(j)(B) prior to the Third Amendment Effective Date. Notwithstanding the foregoing, under no circumstances shall (1) any Foreign Subsidiary own any of the Capital Stock of any Domestic Subsidiary except as permitted by and (other than a Luxembourg Finance Subsidiary), or (2) GrafTech or any Loan Party make any Investment on or after the Third Amendment Effective Date in accordance any person that is not GrafTech or a Guarantor that is a Domestic Subsidiary unless immediately after giving effect to such Investment GrafTech shall be in compliance with Section 9.19the Loan Party Transfer Restriction. For the avoidance of doubt (A) doubt, in the event and to the extent that substantially simultaneously with the making of any new Investment, the investor receives a return of capital in respect of an existing Investment in the same person in which such new Investment is being made, such new Investment will be deemed to be a continuation of such existing Investment for purposes of determining compliance with the provisions of this Section 6.04, and (B) in the event and to the extent that substantially simultaneously with the making of any new Investment by a Loan Party in Swissco (x) with the proceeds of Indebtedness incurred under the General Debt Basket, Swissco makes an Investment under Section 6.01(j) with such proceeds in a Foreign Subsidiary, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall not constitute an additional usage of the basket under Section 6.04(d), (j), or (y) with Equity Proceeds or Available Disposition Proceeds, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall be deemed to have been made with such Equity Proceeds or Available Disposition Proceeds.
Appears in 1 contract
Investments, Loans, Advances and Acquisitions. Purchase, hold or acquire any Capital Stock, evidences of Indebtedness or other securities of (including any option, warrant or other right to acquire any of the foregoing), make or permit to exist any loans or advances to, Guarantee any obligations of, be liable in respect of any obligation under any Interest/Exchange Rate Protection Agreement or Commodity Rate Protection Agreement entered into to limit risks or to control costs or expenses arising in the business of another person or to convert fixed rate obligations of another person to floating rate obligations, or make or permit to exist any investment or any other interest in, any other person (including by means of a disposition of part but not all the Capital Stock of any Subsidiary under Section 6.05(i)), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person constituting a business unit (each of the foregoing transactions, an “Investment”), except:
(ai) Investments (i) existing that existed on the Restatement Effective Date in the Capital Stock of the Subsidiaries; (ii) by GrafTech in the Capital Stock of Seadrift, GrafTech USA or Holdingsany Domestic Subsidiary; (iii) by any Subsidiary Loan Party in any Subsidiary Loan Party (so long as (A) such person shall remain a Loan Party after giving effect to such Investment, (B) such person is not an Excluded Foreign Loan Party, and (C) any such Investment in Luxembourg Holdco or Swissco (other than an Investment made by Luxembourg Parent, Luxembourg Holdco or Swissco) arising as a substantially contemporaneous consequence of the making of such Investment shall not be permitted under this paragraph (a) and must be permitted under another paragraph of this Section 6.04); (iv) by any Subsidiary that is not a Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a [[NYCORP:3461068v7:3124W: 04/23/2014--12:33 AM]] Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment); and (v) if no Default or Event of Default exists or will exist immediately after giving effect to such Investment, by any Excluded Foreign Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment);
(bj) Permitted Investments and Investments that were Permitted Investments when made;
(ck) Investments arising out of the receipt by any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05; provided, however, that such consideration (if the stated amount or value thereof is in excess of $1,000,000) is pledged upon receipt pursuant to the Pledge Agreements to the extent required thereby;
(dl) (i) intercompany loans to a Borrower or Subsidiary Loan Parties that comply with Section 6.01 (including any requirement that such Indebtedness be permitted under one or more specified paragraphs of this Section 6.04), and intercompany loans to GrafTech that comply with Section 6.06 and (ii) intercompany loans by Luxembourg Parent, Luxembourg Holdco or Swissco to its Subsidiaries Luxembourg Parent or the direct or indirect subsidiaries of Luxembourg Parent in an aggregate amount not to exceed (A) $50,000,000 with respect to the aggregate of such Investments made to any one Subsidiary direct or indirect subsidiary of Swissco Luxembourg Parent and (B) $100,000,000 with respect to the aggregate of such Investments made to all Subsidiaries direct or indirect subsidiaries of SwisscoLuxembourg Parent;
(em) (i) loans and advances to employees of GrafTech, the Borrowers or the other Subsidiaries not to exceed $6,000,000 in the aggregate at any time outstanding (excluding up to $1,000,000 in loans existing on the Restatement Effective Date to former employees) and (ii) advances of payroll payments and expenses to employees in the ordinary course of business;
(i) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and (ii) prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of GrafTech and the Subsidiaries;
(go) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted pursuant to Section 6.01(a)(iii), 6.01(b)(iv) or 6.01(c)(iv), and Cash Management Arrangements and Guarantees, letters of credit and bank guarantees in respect of Cash Management Arrangements [[NYCORP:3461068v7:3124W: 04/23/2014--12:33 AM]] permitted under Section 6.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangements permitted under Section 6.02(q);
(hp) Investments, other than Investments listed in paragraphs (a) through (g) of this Section, existing that existed on the Restatement Effective Date and are set forth on Schedule 6.04;
(iq) Investments resulting from pledges and deposits referred to in Section 6.02(g) or (h);
(jr) any Investment constituting a Permitted Subsidiary Investment made after the Restatement Effective Date; provided, that (xi) either (A) the Leverage Ratio as of the last day of the most recent fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (b) (recomputed on a pro forma basis after giving effect to such Investment as if such Investment had occurred on the first day of the relevant period for such computation) is less than or equal to 3.25 to 1.001.00 or (B) such Permitted Subsidiary Investment is a Permitted Acquisition and the amount of such Investment, taken together with the aggregate amount of all other Permitted Subsidiary Investments made pursuant to this clause (B) during the period after the Restatement Effective Date, shall not exceed $400,000,000, and (yii) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses;
(ks) any Investment made after the Restatement Effective Date constituting a Permitted Subsidiary Investment in a Subsidiary (or a business to become a Subsidiary after giving effect to such Investment) that is engaged in the business of manufacturing graphite electrodes or is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Restatement Effective Date and not more than two years prior to the date of such Investment and not otherwise used during such two-year period under Section 6.09(d)(v) or to make any Investment under this Section 6.04(k) or Section 6.04(m);
(lt) any Investment made after the Restatement Effective Date constituting a Permitted Subsidiary Investment made with Available Disposition Proceeds; provided, however, that (i) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses and after giving effect to any increase in the Available Commitments due to the making of such Investment, and (ii) the aggregate amount of consideration paid in respect of Permitted Subsidiary Investments that are not Permitted Acquisitions and that are made in reliance on this paragraph (l) shall not exceed $50,000,000;
; [[NYCORP:3461068v7:3124W: 04/23/2014--12:33 AM]] (mu) any Investment in an Unrestricted Subsidiary or constituting a Permitted Subsidiary Investment made after the Restatement Effective Date in a person that is not a Subsidiary or is neither engaged in the business of manufacturing graphite electrodes nor is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Restatement Effective Date and not more than 90 days prior to the date on which definitive documentation for such Investment is entered into and not otherwise used during such 90-day period under Section 6.09(d)(v) or to make any Investment under Section 6.04(k) or this Section 6.04(m);
(n) Investments constituting Permitted Subsidiary Investments or Investments in Unrestricted Subsidiaries made after the Effective Date with Capital Stock of GrafTech (other than Disqualified Stock);
(o) Guarantees by GrafTech of Supply Chain Arrangements and obligations of GrafTech, a Borrower or any other Subsidiary that do not constitute Indebtedness and in each case are entered into in the ordinary course of business; and
(p) Investments consisting of Indebtedness permitted under Sections 6.01(a)(xii), 6.01(b)(v) and 6.01(c)(v), unsecured Guarantees permitted under Section 6.01(b)(iv) and any Guarantee by any Loan Party created under a Loan Document.
(q) Investments resulting from contributions to Swissco referred to in Section 6.05(f);
(r) any cash Investment in an Unrestricted Subsidiary made after the Effective Date; provided that the aggregate amount of all such Investments made or held in Unrestricted Subsidiaries shall not exceed (net of return of capital of (but not return on) any such Investment) $30,000,000 at any time. Notwithstanding the foregoing, under no circumstances shall any Foreign Subsidiary own any of the Capital Stock of any Domestic Subsidiary except as permitted by and in accordance with Section 9.19. For the avoidance of doubt (A) in the event and to the extent that substantially simultaneously with the making of any new Investment, the investor receives a return of capital in respect of an existing Investment in the same person in which such new Investment is being made, such new Investment will be deemed to be a continuation of such existing Investment for purposes of determining compliance with the provisions of this Section 6.04, and (B) in the event and to the extent that substantially simultaneously with the making of any new Investment by a Loan Party in Swissco (x) with the proceeds of Indebtedness incurred under the General Debt Basket, Swissco makes an Investment under Section 6.01(j) with such proceeds in a Foreign Subsidiary, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall not constitute an additional usage of the basket under Section 6.04(d), (j), or (y) with Equity Proceeds or Available Disposition Proceeds, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall be deemed to have been made with such Equity Proceeds or Available Disposition Proceeds.
Appears in 1 contract
Investments, Loans, Advances and Acquisitions. PurchaseThe Borrower will not, and will not permit any of its Material Subsidiaries to, purchase, hold or acquire (including pursuant to any Capital Stockmerger with any Person that was not a wholly owned Material Subsidiary prior to such merger) any capital stock, evidences of Indebtedness indebtedness or other securities of (including any option, warrant or other right to acquire any of the foregoing)) of, make or permit to exist any loans or advances to, Guarantee any obligations of, be liable in respect of any obligation under any Interest/Exchange Rate Protection Agreement or Commodity Rate Protection Agreement entered into to limit risks or to control costs or expenses arising in the business of another person or to convert fixed rate obligations of another person to floating rate obligations, or make or permit to exist any investment or any other interest in, any other person (including by means of a disposition of part but not all the Capital Stock of any Subsidiary under Section 6.05(i))Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person Person constituting a business unit (each of the foregoing transactions, an “Investment”)unit, except:
(a) Investments (i) existing on the Effective Date in the Capital Stock of the Subsidiaries; (ii) by GrafTech in the Capital Stock of Seadrift, GrafTech USA or Holdings; (iii) by any Subsidiary Loan Party in any Subsidiary Loan Party (so long as (A) such person shall remain a Loan Party after giving effect to such Investment, (B) such person is not an Excluded Foreign Loan Party, and (C) any such Investment in Swissco arising as a substantially contemporaneous consequence of the making of such Investment shall not be permitted under this paragraph (a) and must be permitted under another paragraph of this Section 6.04); (iv) by any Subsidiary that is not a Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment); and (v) if no Default or Event of Default exists or will exist immediately after giving effect to such Investment, by any Excluded Foreign Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment)Permitted Investments;
(b) Permitted Investments and Investments that were Permitted Investments when madeinvestments by the Borrower existing on the date hereof;
(c) Investments arising out investments by the Borrower and the Subsidiaries in Equity Interests of their respective Subsidiaries; provided that (i) any such Equity Interests held by a Credit Party shall be pledged in accordance with the requirements of the receipt Pledge Agreement and (ii) the aggregate amount of such investments made by any Subsidiary Credit Parties in Subsidiaries that are not Credit Parties (together with the amount of non-cash consideration for the sale Guarantees by Credit Parties of assets Subsidiaries that are not Credit Parties permitted under Section 6.05; provided, however, that such consideration 6.01(d) and the amount of outstanding intercompany loans permitted under clause (if d) of this Section) shall not exceed $25,000,000 in the stated amount aggregate at any one time outstanding (in each case determined without regard to any write-downs or value thereof is in excess of $1,000,000) is pledged upon receipt pursuant to the Pledge Agreements to the extent required therebywrite-offs);
(d) loans or advances made by any Credit Party to any Subsidiary and made by any Subsidiary to any Credit Party or any other Subsidiary; provided that the amount of such loans and advances made by Credit Parties to Subsidiaries that are not Credit Parties (i) intercompany loans to a Borrower or Subsidiary Loan together with the amount of Guarantees by Credit Parties of Subsidiaries that comply with Section 6.01 (including any requirement that such Indebtedness be are not Credit Parties permitted under one or more specified paragraphs Section 6.01(d) and the amount of this Section 6.04), and intercompany loans to GrafTech that comply with Section 6.06 and investments permitted under subclause (ii) intercompany loans by Swissco of the proviso to its Subsidiaries clause (c) of this Section) shall not exceed $25,000,000 in an aggregate amount not to exceed (A) $50,000,000 with respect to the aggregate of such Investments made at any one time outstanding (in each case determined without regard to any one Subsidiary of Swissco and (B) $100,000,000 with respect to the aggregate of such Investments made to all Subsidiaries of Swisscowrite-downs or write-offs);
(e) loans, advances, purchases of Indebtedness and investments made by the Borrower or any Material Subsidiary in connection with any Private Education Loan Program or Institutional Loans; provided that the sum (without duplication) of (i) (A) the original principal balance of student loans originated under any Private Education Loan Program pursuant to which the Borrower provides a Guarantee and which was entered into after the Effective Date, minus (B) the amount of any refunds or cancellations of such student loans, minus (C) the portion of the purchase price of such student loans (excluding, for the avoidance of doubt, Institutional Loans) that was funded, directly or indirectly, by the Borrower, minus (D) the portion of such student loans that is not covered by the Borrower’s Guarantee, plus (ii) the aggregate outstanding amount of Institutional Loans (net of allowances for credit losses), in each case calculated on a pro forma basis after giving effect to the issuance, incurrence or purchase thereof, shall not exceed 1.75x EBITDA for the most recently completed period of four consecutive fiscal quarters of the Borrower;
(f) receivables or other trade payables owing to the Borrower or a Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as the Borrower or any Subsidiary deems reasonable under the circumstances;
(g) loans or advances to employees of GrafTech, the Borrowers Borrower or any Subsidiary made in the other Subsidiaries ordinary course of business of the Borrower or any Subsidiary not to exceed exceeding $6,000,000 2,500,000 in the aggregate outstanding at any time (determined without regard to any write-downs or write-offs of such loans or advances); provided that no such loans or advances to any single employee shall exceed $250,000 in the aggregate outstanding at any time (excluding up determined without regard to $1,000,000 in any write-downs or write-offs of such loans existing on or advances);
(h) payroll, travel and similar advances to cover matters that are expected at the Effective Date time of such advances ultimately to former employees) be treated as expenses of the Borrower or any Subsidiary for accounting purposes and (ii) advances of payroll payments and expenses to employees that are made in the ordinary course of business;
(i) accounts receivable arising and trade credit granted in the ordinary course of business and any securities investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and (ii) prepayments and other credits to suppliers made in the ordinary course of business consistent connection with the past practices bankruptcy or reorganization of, or settlement of GrafTech delinquent accounts and the Subsidiaries;
(g) Interest/Exchange Rate Protection Agreements disputes with, customers and Commodity Rate Protection Agreements permitted pursuant to Section 6.01(a)(iii)suppliers, 6.01(b)(iv) or 6.01(c)(iv), and Cash Management Arrangements and Guarantees, letters of credit and bank guarantees in respect of Cash Management Arrangements permitted under Section 6.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangements permitted under Section 6.02(q);
(h) Investments, other than Investments listed in paragraphs (a) through (g) of this Section, existing on the Effective Date and set forth on Schedule 6.04;
(i) Investments resulting from pledges and deposits referred to in Section 6.02(g) or (h);
(j) any Investment constituting a Permitted Subsidiary Investment made after the Effective Date; provided, that (x) the Leverage Ratio as of the last day of the most recent fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (b) (recomputed on a pro forma basis after giving effect to such Investment as if such Investment had occurred on the first day of the relevant period for such computation) is less than or equal to 3.25 to 1.00, and (y) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses;
(k) any Investment made after the Effective Date constituting a Permitted Subsidiary Investment in a Subsidiary (or a business to become a Subsidiary after giving effect to such Investment) that is engaged in the business of manufacturing graphite electrodes or is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Effective Date and not more than two years prior to the date of such Investment and not otherwise used during such two-year period under Section 6.09(d)(v) or to make any Investment under this Section 6.04(k) or Section 6.04(m);
(l) any Investment made after the Effective Date constituting a Permitted Subsidiary Investment made with Available Disposition Proceeds; provided, however, that (i) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses and after giving effect to any increase in the Available Commitments due to the making of such Investment, and (ii) the aggregate amount of consideration paid in respect of Permitted Subsidiary Investments that are not Permitted Acquisitions and that are made in reliance on this paragraph (l) shall not exceed $50,000,000;
(m) any Investment in an Unrestricted Subsidiary or constituting a Permitted Subsidiary Investment made after the Effective Date in a person that is not a Subsidiary or is neither engaged in the business of manufacturing graphite electrodes nor is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Effective Date and not more than 90 days prior to the date on which definitive documentation for such Investment is entered into and not otherwise used during such 90-day period under Section 6.09(d)(v) or to make any Investment under Section 6.04(k) or this Section 6.04(m);
(n) Investments constituting Permitted Subsidiary Investments or Investments in Unrestricted Subsidiaries made after the Effective Date with Capital Stock of GrafTech (other than Disqualified Stock);
(o) Guarantees by GrafTech of Supply Chain Arrangements and obligations of GrafTech, a Borrower or any other Subsidiary that do not constitute Indebtedness and in each case are entered into in the ordinary course of business;
(j) investments in the form of Swap Agreements permitted by Section 6.05;
(k) investments of any Person existing at the time such Person becomes a Subsidiary or consolidates 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 consolidation or merger;
(l) investments that result solely from the receipt by the Borrower or any Subsidiary from any of its subsidiaries of a dividend or other Restricted Payment in the form of Equity Interests, evidences of Indebtedness or other securities (but not any additions thereto made after the date of the receipt thereof);
(m) mergers and consolidations permitted under Section 6.03 that do not involve any Person other than the Borrower and Subsidiaries that are wholly owned Subsidiaries;
(n) Permitted Acquisitions;
(o) investments constituting Indebtedness permitted under Section 6.01; and
(p) Investments consisting of Indebtedness permitted under Sections 6.01(a)(xii), 6.01(b)(v) and 6.01(c)(v), unsecured Guarantees permitted under Section 6.01(b)(iv) and any Guarantee by any Loan Party created under a Loan Document.
(q) Investments resulting from contributions to Swissco referred to other investments not exceeding $75,000,000 in Section 6.05(f);
(r) any cash Investment in an Unrestricted Subsidiary made after the Effective Date; provided that the aggregate amount of all such Investments made or held in Unrestricted Subsidiaries shall not exceed (net of return of capital of (but not return on) any such Investment) $30,000,000 outstanding at any time. Notwithstanding the foregoing, under no circumstances shall time (in each case determined without regard to any Foreign Subsidiary own any of the Capital Stock of any Domestic Subsidiary except as permitted by and in accordance with Section 9.19. For the avoidance of doubt (A) in the event and to the extent that substantially simultaneously with the making of any new Investment, the investor receives a return of capital in respect of an existing Investment in the same person in which such new Investment is being made, such new Investment will be deemed to be a continuation of such existing Investment for purposes of determining compliance with the provisions of this Section 6.04, and (B) in the event and to the extent that substantially simultaneously with the making of any new Investment by a Loan Party in Swissco (x) with the proceeds of Indebtedness incurred under the General Debt Basket, Swissco makes an Investment under Section 6.01(j) with such proceeds in a Foreign Subsidiary, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall not constitute an additional usage of the basket under Section 6.04(dwrite-downs or write-offs), (j), or (y) with Equity Proceeds or Available Disposition Proceeds, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall be deemed to have been made with such Equity Proceeds or Available Disposition Proceeds.
Appears in 1 contract
Investments, Loans, Advances and Acquisitions. Purchase, hold or acquire any Capital Stock, evidences of Indebtedness or other securities of (including any option, warrant or other right to acquire any of the foregoing), make or permit to exist any loans or advances to, Guarantee any obligations of, be liable in respect of any obligation under any Interest/Exchange Rate Protection Agreement or Commodity Rate Protection Agreement entered into to limit risks or to control costs or expenses arising in the business of another person or to convert fixed rate obligations of another person to floating rate obligations, or make or permit to exist any investment or any other interest in, any other person (including by means of a disposition of part but not all the Capital Stock of any Subsidiary under Section 6.05(i)), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person constituting a business unit (each of the foregoing transactions, an “Investment”), except:
(a) Investments (i) existing on the Effective Date in the Capital Stock of the SubsidiariesSubsidiaries or existing on the First Amendment Effective Date or March 30, 2012, as a result of the Permitted Restructuring; (ii) by GrafTech in the Capital Stock of Seadrift, GrafTech USA or Holdings; (iii) by any Subsidiary Loan Party in any Subsidiary Loan Party (so long as (A) such person shall remain a Loan Party after giving effect to such Investment, (B) such person is not an Excluded Foreign Loan Party, and (C) any such Investment in Luxembourg Holdco or Swissco (other than an Investment made by Luxembourg Parent, Luxembourg Holdco or Swissco) arising as a substantially contemporaneous consequence of the making of such Investment shall not be permitted under this paragraph (a) and must be permitted under another paragraph of this Section 6.04); (iv) by any Subsidiary that is not a Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment); and (v) if no Default or Event of Default exists or will exist immediately after giving effect to such Investment, by any Excluded Foreign Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment);
(b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05; provided, however, that such consideration (if the stated amount or value thereof is in excess of $1,000,000) is pledged upon receipt pursuant to the Pledge Agreements to the extent required thereby;
(d) (i) intercompany loans to a Borrower or Subsidiary Loan Parties that comply with Section 6.01 (including any requirement that such Indebtedness be permitted under one or more specified paragraphs of this Section 6.04), and intercompany loans to GrafTech that comply with Section 6.06 and (ii) intercompany loans by Luxembourg Parent, Luxembourg Holdco or Swissco to its Subsidiaries Luxembourg Parent or the direct or indirect subsidiaries of Luxembourg Parent in an aggregate amount not to exceed (A) $50,000,000 with respect to the aggregate of such Investments made to any one Subsidiary direct or indirect subsidiary of Swissco Luxembourg Parent and (B) $100,000,000 with respect to the aggregate of such Investments made to all Subsidiaries direct or indirect subsidiaries of SwisscoLuxembourg Parent;
(e) (i) loans and advances to employees of GrafTech, the Borrowers or the other Subsidiaries not to exceed $6,000,000 in the aggregate at any time outstanding (excluding up to $1,000,000 in loans existing on the Effective Date to former employees) and (ii) advances of payroll payments and expenses to employees in the ordinary course of business;
(i) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and (ii) prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of GrafTech and the Subsidiaries;
(g) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted pursuant to Section 6.01(a)(iii), 6.01(b)(iv) or 6.01(c)(iv), and Cash Management Arrangements and Guarantees, letters of credit and bank guarantees in respect of Cash Management Arrangements permitted under Section 6.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangements permitted under Section 6.02(q);
(h) Investments, other than Investments listed in paragraphs (a) through (g) of this Section, existing on the Effective Date and set forth on Schedule 6.04;
(i) Investments resulting from pledges and deposits referred to in Section 6.02(g) or (h);
(j) any Investment constituting a Permitted Subsidiary Investment made after the Effective Date; provided, that (x) the Leverage Ratio as of the last day of the most recent fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (b) (recomputed on a pro forma basis after giving effect to such Investment as if such Investment had occurred on the first day of the relevant period for such computation) is less than or equal to 3.25 to 1.00, and (y) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses;
(k) any Investment made after the Effective Date constituting a Permitted Subsidiary Investment in a Subsidiary (or a business to become a Subsidiary after giving effect to such Investment) that is engaged in the business of manufacturing graphite electrodes or is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Effective Date and not more than two years prior to the date of such Investment and not otherwise used during such two-year period under Section 6.09(d)(v) or to make any Investment under this Section 6.04(k) or Section 6.04(m);
(l) any Investment made after the Effective Date constituting a Permitted Subsidiary Investment made with Available Disposition Proceeds; provided, however, that (i) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses and after giving effect to any increase in the Available Commitments due to the making of such Investment, and (ii) the aggregate amount of consideration paid in respect of Permitted Subsidiary Investments that are not Permitted Acquisitions and that are made in reliance on this paragraph (l) shall not exceed $50,000,000;
(m) any Investment in an Unrestricted Subsidiary or constituting a Permitted Subsidiary Investment made after the Effective Date in a person that is not a Subsidiary or is neither engaged in the business of manufacturing graphite electrodes nor is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Effective Date and not more than 90 days prior to the date on which definitive documentation for such Investment is entered into and not otherwise used during such 90-day period under Section 6.09(d)(v) or to make any Investment under Section 6.04(k) or this Section 6.04(m);
(n) Investments constituting Permitted Subsidiary Investments or Investments in Unrestricted Subsidiaries made after the Effective Date with Capital Stock of GrafTech (other than Disqualified Stock);
(o) Guarantees by GrafTech of Supply Chain Arrangements and obligations of GrafTech, a Borrower or any other Subsidiary that do not constitute Indebtedness and in each case are entered into in the ordinary course of business; and
(p) Investments consisting of Indebtedness permitted under Sections 6.01(a)(xii), 6.01(b)(v) and 6.01(c)(v), unsecured Guarantees permitted under Section 6.01(b)(iv) and any Guarantee by any Loan Party created under a Loan Document.
(q) Investments resulting from contributions to Swissco referred to in Section 6.05(f);
(r) any cash Investment in an Unrestricted Subsidiary made after the Effective Date; provided that the aggregate amount of all such Investments made or held in Unrestricted Subsidiaries shall not exceed (net of return of capital of (but not return on) any such Investment) $30,000,000 at any time. Notwithstanding the foregoing, under no circumstances shall any Foreign Subsidiary own any of the Capital Stock of any Domestic Subsidiary (except as permitted by Section 9.19 of the 2011 Credit Agreement and in accordance with Section 9.19on the terms and subject to the requirements set forth therein). For the avoidance of doubt doubt, (A) in the event and to the extent that substantially simultaneously with the making of any new Investment, the investor receives a return of capital in respect of an existing Investment in the same person in which such new Investment is being made, such new Investment will be deemed to be a continuation of such existing Investment for purposes of determining compliance with the provisions of this Section 6.04, and (B) in the event and to the extent that substantially simultaneously with the making of any new Investment by a Loan Party in Luxembourg Parent, Luxembourg Holdco or Swissco (x) with the proceeds of Indebtedness incurred under the General Debt Basket, Luxembourg Parent, Luxembourg Holdco or Swissco makes an Investment under Section 6.01(j6.04(j) with such proceeds in a Foreign Subsidiary, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall not constitute an additional usage of the basket under Section 6.04(d), (j) or 6.04(j), or (y) with Equity Proceeds or Available Disposition Proceeds, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall be deemed to have been made with such Equity Proceeds or Available Disposition Proceeds.
Appears in 1 contract
Investments, Loans, Advances and Acquisitions. PurchaseNo Loan Party will, nor will it permit any Subsidiary to, form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any Capital Stockmerger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any Equity Interests, evidences of Indebtedness indebtedness or other securities of (including any option, warrant or other right to acquire any of the foregoing)) of, make or permit to exist any loans or advances to, Guarantee any obligations of, be liable in respect of any obligation under any Interest/Exchange Rate Protection Agreement or Commodity Rate Protection Agreement entered into to limit risks or to control costs or expenses arising in the business of another person or to convert fixed rate obligations of another person to floating rate obligations, or make or permit to exist any investment or any other interest in, any other person (including by means of a disposition of part but not all the Capital Stock of any Subsidiary under Section 6.05(i))Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person Person constituting a business unit (each whether through purchase of the foregoing transactionsassets, an “Investment”merger or otherwise), except:
(a) Investments (i) existing on the Effective Date Permitted Investments, subject to a perfected security interest in the Capital Stock favor of the Subsidiaries; (ii) by GrafTech in Administrative Agent for the Capital Stock of Seadrift, GrafTech USA or Holdings; (iii) by any Subsidiary Loan Party in any Subsidiary Loan Party (so long as (A) such person shall remain a Loan Party after giving effect to such Investment, (B) such person is not an Excluded Foreign Loan Party, and (C) any such Investment in Swissco arising as a substantially contemporaneous consequence benefit of the making of such Investment shall not be permitted under this paragraph (a) and must be permitted under another paragraph of this Section 6.04); (iv) by any Subsidiary that is not a Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment); and (v) if no Default or Event of Default exists or will exist immediately after giving effect to such Investment, by any Excluded Foreign Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investment)Secured Parties;
(b) Permitted Investments investments in existence on the date hereof and Investments that were Permitted Investments when madedescribed in Schedule 6.04;
(c) Investments arising out investments by the Loan Parties and their Subsidiaries in Equity Interests in their respective Subsidiaries, provided that (i) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Security Agreements (subject to the limitations applicable to Equity Interests of a Foreign Subsidiary referred to in Section 5.14) and (ii) the receipt aggregate amount of investments by any Subsidiary of non-cash consideration for the sale of assets Loan Parties in Subsidiaries that are not Loan Parties (together with outstanding intercompany loans permitted under Section 6.056.04(d) and outstanding Guarantees permitted under Section 6.04(e)) shall not exceed $[REDACTED] at any time outstanding (in each case determined without regard to any write-downs or write-offs); provided, however, that such consideration (if the stated amount or value thereof is in excess of $1,000,000) is pledged upon receipt pursuant to the Pledge Agreements to the extent required thereby;51167637.4
(d) (i) intercompany loans or advances made by any Loan Party to any Subsidiary and made by any Subsidiary to a Borrower Loan Party or Subsidiary any other Subsidiary, provided that the amount of such loans and advances made by Loan Parties to Subsidiaries that comply are not Loan Parties (together with Section 6.01 (including any requirement that such Indebtedness be outstanding investments permitted under one or more specified paragraphs of this Section 6.046.04(c) and outstanding Guarantees permitted under Section 6.04(e), and intercompany loans to GrafTech that comply with Section 6.06 and ) shall not exceed $[REDACTED] at any time outstanding (ii) intercompany loans by Swissco to its Subsidiaries in an aggregate amount not to exceed (A) $50,000,000 with respect to the aggregate of such Investments made each case determined without regard to any one Subsidiary of Swissco and (B) $100,000,000 with respect to the aggregate of such Investments made to all Subsidiaries of Swisscowrite-downs or write-offs);
(e) Guarantees constituting Indebtedness permitted by Section 6.01, provided that (i) the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party (together with outstanding investments permitted under clause (ii) to the proviso to Section 6.04(c) and outstanding intercompany loans and advances permitted under clause (ii) to employees of GrafTech, the Borrowers or the other Subsidiaries proviso to Section 6.04(d)) shall not to exceed $6,000,000 in the aggregate [REDACTED] at any time outstanding (excluding up in each case determined without regard to $1,000,000 in loans existing on the Effective Date to former employees) and (ii) advances of payroll payments and expenses to employees in the ordinary course of businessany write-downs or write-offs);
(if) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction loans or partial satisfaction thereof from financially troubled account debtors advances made by a Loan Party to the extent reasonably necessary in order to prevent or limit loss and (ii) prepayments and other credits to suppliers made its employees on an arms-length basis in the ordinary course of business consistent with the past practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of GrafTech $[REDACTED] in the aggregate made per employee during the term of this Agreement and a maximum of $[REDACTED] in the Subsidiariesaggregate made for all employees during the term of this Agreement;
(g) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted notes payable, or stock or other securities issued by Account Debtors to a Loan Party pursuant to Section 6.01(a)(iii), 6.01(b)(iv) or 6.01(c)(iv), and Cash Management Arrangements and Guarantees, letters of credit and bank guarantees in negotiated agreements with respect of Cash Management Arrangements permitted under Section 6.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangements permitted under Section 6.02(q);
(h) Investments, other than Investments listed in paragraphs (a) through (g) of this Section, existing on the Effective Date and set forth on Schedule 6.04;
(i) Investments resulting from pledges and deposits referred to in Section 6.02(g) or (h);
(j) any Investment constituting a Permitted Subsidiary Investment made after the Effective Date; provided, that (x) the Leverage Ratio as of the last day of the most recent fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (b) (recomputed on a pro forma basis after giving effect to such Investment as if such Investment had occurred on the first day of the relevant period for such computation) is less than or equal to 3.25 to 1.00, and (y) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses;
(k) any Investment made after the Effective Date constituting a Permitted Subsidiary Investment in a Subsidiary (or a business to become a Subsidiary after giving effect to such Investment) that is engaged in the business of manufacturing graphite electrodes or is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Effective Date and not more than two years prior to the date settlement of such Investment and not otherwise used during such two-year period under Section 6.09(d)(v) or to make any Investment under this Section 6.04(k) or Section 6.04(m);
(l) any Investment made after the Effective Date constituting a Permitted Subsidiary Investment made with Available Disposition Proceeds; provided, however, that (i) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses and after giving effect to any increase in the Available Commitments due to the making of such Investment, and (ii) the aggregate amount of consideration paid in respect of Permitted Subsidiary Investments that are not Permitted Acquisitions and that are made in reliance on this paragraph (l) shall not exceed $50,000,000;
(m) any Investment in an Unrestricted Subsidiary or constituting a Permitted Subsidiary Investment made after the Effective Date in a person that is not a Subsidiary or is neither engaged in the business of manufacturing graphite electrodes nor is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such Investment is made with Equity Proceeds received after the Effective Date and not more than 90 days prior to the date on which definitive documentation for such Investment is entered into and not otherwise used during such 90-day period under Section 6.09(d)(v) or to make any Investment under Section 6.04(k) or this Section 6.04(m);
(n) Investments constituting Permitted Subsidiary Investments or Investments in Unrestricted Subsidiaries made after the Effective Date with Capital Stock of GrafTech (other than Disqualified Stock);
(o) Guarantees by GrafTech of Supply Chain Arrangements and obligations of GrafTech, a Borrower or any other Subsidiary that do not constitute Indebtedness and in each case are entered into Account Debtor’s Accounts in the ordinary course of business, consistent with past practices;
(h) investments in the form of Swap Agreements permitted by Section 6.07;
(i) investments of any Person existing at the time such Person becomes a Subsidiary of the Borrower or consolidates or merges with the Borrower or any Subsidiary (including in connection with a permitted acquisition), so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(j) investments received in connection with the disposition of assets permitted by Section 6.05;
(k) investments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”;
(l) investments consisting of a Permitted Acquisition; and
(pm) Investments consisting of Indebtedness permitted under Sections 6.01(a)(xii), 6.01(b)(v) and 6.01(c)(v), unsecured Guarantees permitted under Section 6.01(b)(iv) and any Guarantee by any Loan Party created under a Loan Document.
(q) Investments resulting from contributions to Swissco referred to in Section 6.05(f);
(r) any cash Investment in an Unrestricted Subsidiary made after the Effective Date; provided that the aggregate amount of all such Investments made loans or held in Unrestricted Subsidiaries shall not exceed (net of return of capital of (but not return on) any such Investment) $30,000,000 at any timeadvances constituting JV Entity Permitted Debt. Notwithstanding the foregoing, under no circumstances shall any Foreign Subsidiary own Loan Party or any of their Subsidiaries shall make any loans or advances to any JV Entity (other than loans or advances constituting JV Entity Permitted Debt), without the Capital Stock of any Domestic Subsidiary except as permitted by and in accordance with Section 9.19. For the avoidance of doubt (A) in the event and to the extent that substantially simultaneously with the making of any new Investment, the investor receives a return of capital in respect of an existing Investment in the same person in which such new Investment is being made, such new Investment will be deemed to be a continuation of such existing Investment for purposes of determining compliance with the provisions of this Section 6.04, and (B) in the event and to the extent that substantially simultaneously with the making of any new Investment by a Loan Party in Swissco (x) with the proceeds of Indebtedness incurred under the General Debt Basket, Swissco makes an Investment under Section 6.01(j) with such proceeds in a Foreign Subsidiary, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall not constitute an additional usage prior written consent of the basket under Section 6.04(d), (j), or (y) with Equity Proceeds or Available Disposition Proceeds, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall be deemed to have been made with such Equity Proceeds or Available Disposition ProceedsRequired Lenders.
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Samples: Credit Agreement (CRH Medical Corp)
Investments, Loans, Advances and Acquisitions. Purchase, hold or acquire any Capital Stock, evidences of Indebtedness or other securities of (including any option, warrant or other right to acquire any of the foregoing), make or permit to exist any loans or advances to, Guarantee any obligations of, be liable in respect of any obligation under any Interest/Exchange Rate Protection Agreement or Commodity Rate Protection Agreement entered into to limit risks or to control costs or expenses arising in the business of another person or to convert fixed rate obligations of another person to floating rate obligations, or make or permit to exist any investment or any other interest in, any other person (including by means of a disposition of part but not all the Capital Stock of any Subsidiary under Section 6.05(i7.05(i)), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person constituting a business unit (each of the foregoing transactions, an “Investment”)unit, except:
(a) Investments investments (i) existing on the Effective Date in the Capital Stock of the Subsidiaries; (ii) by GrafTech in the Capital Stock of Seadrift, GrafTech USA or HoldingsGlobal and the Borrower; (iii) by Global or any Subsidiary Loan Party in any Subsidiary Loan Party (so long as (A) such person shall remain a Loan Party after giving effect to such Investmentinvestment, (B) such person is not an Excluded Foreign Loan Party, and (C) any such Investment investment in Swissco in excess of any increase in the Swissco Guarantee Amount arising as a substantially contemporaneous consequence of the making of such Investment investment shall not be permitted under this paragraph (a) and must be permitted under another paragraph of this Section 6.047.04); (iv) by any Subsidiary that is not a Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investmentinvestment); and (v) if no Default or Event of Default exists or will exist immediately after giving effect to such Investmentinvestment, by any Excluded Foreign Loan Party in any Subsidiary Loan Party or any Wholly Owned Subsidiary that is not a Loan Party (so long as such Loan Party shall remain a Loan Party or such Wholly Owned Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such Investmentinvestment);
(b) Permitted Investments and Investments investments that were Permitted Investments when made;
(c) Investments investments arising out of the receipt by Global or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.057.05; provided, however, that such consideration (if the stated amount or value thereof is in excess of $1,000,000) is pledged upon receipt pursuant to the Pledge Agreements to the extent required thereby;
(d) (i) the Intercompany Loans and intercompany loans to a Global, the Borrower or Subsidiary Loan Parties that comply with Section 6.01 7.01 (including any requirement that such Indebtedness be permitted under one or more specified paragraphs a paragraph of this Section 6.047.04), and intercompany loans to GrafTech that comply with Section 6.06 and (ii) intercompany loans by Swissco to its Subsidiaries in an aggregate amount not to exceed (A) $50,000,000 with respect to the aggregate of such Investments made to any one Subsidiary of Swissco and (B) $100,000,000 with respect to the aggregate of such Investments made to all Subsidiaries of Swissco7.06;
(e) (i) loans and advances to employees of GrafTech, Global, the Borrowers Borrower or the other Subsidiaries not to exceed $6,000,000 in the aggregate at any time outstanding (excluding up to $1,000,000 in loans existing on the Effective Date to former employees) and (ii) advances of payroll payments and expenses to employees in the ordinary course of business;
(i) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and (ii) prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of GrafTech GrafTech, Global and the Subsidiaries;
(g) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted pursuant to Section 6.01(a)(iii7.01(a)(iii), 6.01(b)(iv7.01(b)(iv) or 6.01(c)(iv7.01(c)(iv), and Cash Management Arrangements and Guarantees, letters of credit and bank guarantees in respect of Cash Management Arrangements permitted under Section 6.01 7.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangements Arrangement permitted under Section 6.02(q7.02(q);
(h) Investmentsinvestments, other than Investments investments listed in paragraphs (a) through (g) of this Section, existing on the Effective Date and set forth on Schedule 6.047.04;
(i) Investments investments resulting from pledges and deposits referred to in Section 6.02(g7.02(g) or (h);
(j) any Investment investment constituting a Permitted Subsidiary Investment or any investment in an Unrestricted Subsidiary made after the Effective DateDate in respect of which the aggregate amount of consideration (whether cash or property, but excluding consideration consisting of Capital Stock of GrafTech (other than Disqualified Stock)), as valued at the time each such investment is made, does not exceed (net of any return representing return of capital of (but not return on) any such investment) at any time $200,000,000; provided, however, that (x) the Leverage Ratio as aggregate amount of such consideration for all such investments made in Unrestricted Subsidiaries shall not exceed (net of return of capital of (but not return on) any such investment) $30,000,000 at any time, (y) the aggregate amount of such consideration for all such Permitted Subsidiary Investments made in persons in which at the time of determination Global owns, directly or indirectly, less than 90% of the last day outstanding Capital Stock (in each case, at the time of the most recent fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (b) (recomputed on a pro forma basis and immediately after giving effect to such Investment as if investment) shall not exceed (net of return of capital of (but not return on) any such Investment had occurred on the first day investment) $125,000,000 at any time, of the relevant period for such computation) is less which no more than or equal to 3.25 to 1.00$50,000,000 at any time may be invested in persons that are not Subsidiaries, and (yz) the Availability Condition shall be satisfied following such Investment investment and payment of all related costs and expensesexpenses and after giving effect to any increase in the Available Revolving Commitments due to the making of such investment;
(k) any Investment investment made after the Effective Date constituting a Permitted Subsidiary Investment in a Subsidiary (or a business to become a Subsidiary after giving effect to such Investmentinvestment) that is engaged in the business of manufacturing graphite electrodes or is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions graphite and/or thermal management business; provided, however, that such Investment investment is made with Equity Proceeds received after the Effective Date and not more than two years prior to the date of such Investment investment and not otherwise used during such two-year period to make any investment under Section 6.09(d)(v7.04(k) or (m) or to make effect any Investment repurchase, redemption or prepayment of Indebtedness under this Section 6.04(k) or Section 6.04(m7.09(d)(ii);
(l) any Investment investment made after the Effective Date constituting a Permitted Subsidiary Investment made with Available Disposition Proceeds; provided, however, that (i) the Availability Condition shall be satisfied following such Investment investment and payment of all related costs and expenses and after giving effect to any increase in the Available Revolving Commitments due to the making of such Investmentinvestment, (ii) any such investment in a Foreign Subsidiary to be funded with Available Disposition Proceeds received in respect of US Collateral must first be advanced to Swissco under the Swissco Note and thereafter be made and held as a direct or indirect investment of Swissco and (iiiii) the aggregate amount of consideration paid in respect of Permitted Subsidiary Investments that are not Permitted Acquisitions and that are made in reliance on this paragraph (l) shall not exceed $50,000,000;
(m) any Investment investment in an Unrestricted Subsidiary or constituting a Permitted Subsidiary Investment made after the Effective Date in a person that is not a Subsidiary or is neither engaged in the business of manufacturing graphite electrodes nor is otherwise engaged in the carbon, graphite, coke, anode, engineered solutions graphite and/or thermal management business; provided, however, that such Investment investment is made with Equity Proceeds received after the Effective Date and not more than 90 days prior to the date on which definitive documentation for such Investment investment is entered into and not otherwise used during such 90-day period to make any investment under Section 6.09(d)(v7.04(k) or (m) or to make effect any Investment repurchase, redemption or prepayment of Indebtedness under Section 6.04(k) or this Section 6.04(m7.09(d)(ii);
(n) Investments investments constituting Permitted Subsidiary Investments or Investments investments in Unrestricted Subsidiaries made after the Effective Date with Capital Stock of GrafTech (other than Disqualified Stock);
(o) investments consisting of Senior Notes, Senior Notes Refinancing Debt, Convertible Debentures or Convertible Debenture Refinancing Debt repurchased, redeemed or otherwise acquired to the extent permitted in Section 7.09(d);
(p) investments consisting of Intercompany Senior Loans, Intercompany Senior Loan Guarantees by GrafTech of Supply Chain Arrangements and obligations of GrafTech, a Borrower or any other Subsidiary that do not constitute Indebtedness and in each case are entered into in the ordinary course of businessSenior Notes Guarantees; and
(pq) Investments investments consisting of Indebtedness permitted under Sections 6.01(a)(xii), 6.01(b)(v7.01(a)(xii) and 6.01(c)(v), (xv) and 7.01(b)(v) and (viii) and unsecured Guarantees permitted under Section 6.01(b)(iv) and any Guarantee by any Loan Party created under a Loan Document.
(q) Investments resulting from contributions to Swissco referred to in Section 6.05(f7.01(b)(iv);
(r) any cash Investment in an Unrestricted Subsidiary made after the Effective Date; provided that the aggregate amount of all such Investments made or held in Unrestricted Subsidiaries shall not exceed (net of return of capital of (but not return on) any such Investment) $30,000,000 at any time. Notwithstanding the foregoing, under no circumstances shall any Foreign Subsidiary own any of the Capital Stock of any Domestic Subsidiary except as permitted by and in accordance with Section 9.19Subsidiary. For the avoidance of doubt doubt, (Aa) in the event and to the extent that substantially simultaneously with the making of any new Investmentinvestment, the investor receives a return of capital in respect of an existing Investment investment in the same person in which such new Investment investment is being made, such new Investment investment will be deemed to be a continuation of such existing Investment investment for purposes of determining compliance with the provisions of this Section 6.047.04, and (Bb) any investment by Swissco in the event and any person other than GrafTech, Global or any Subsidiary Loan Party that is not an Excluded Foreign Loan Party shall not be required to be permitted under another paragraph of this Section 7.04 to the extent that substantially simultaneously with the making of any new Investment such investment by a Loan Party in Swissco (xi) is made with the proceeds of Indebtedness incurred under an initial investment in Swissco in excess of any increase in the General Debt Basket, Swissco makes an Investment under Section 6.01(jGuarantee Amount arising as a substantially contemporaneous consequence of the making of such initial investment and (b) with such proceeds does not result as a substantially contemporaneous consequence in a Foreign Subsidiary, then decrease in the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall not constitute an additional usage of the basket under Section 6.04(d), (j), or (y) with Equity Proceeds or Available Disposition Proceeds, then the use of such proceeds to make such Investment (and any further substantially simultaneous Investment made with such proceeds) shall be deemed to have been made with such Equity Proceeds or Available Disposition ProceedsSwissco Guarantee Amount.
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