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, 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 7.05(i)), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person constituting a business unit, except: (a) investments (i) existing on the Effective Date in the Capital Stock of the Subsidiaries; (ii) by GrafTech in the Capital Stock of Global 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 investment, (B) such person is not an Excluded Foreign Loan Party, and (C) any such 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 shall not be permitted under this paragraph (a) and must be permitted under another paragraph of this Section 7.04); (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 7.05; 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) the Intercompany Loans and intercompany loans to Global, the Borrower or Subsidiary Loan Parties that comply with Section 7.01 (including any requirement that such Indebtedness be permitted under a paragraph of this Section 7.04), and intercompany loans to GrafTech that comply with Section 7.06; (e) (i) loans and advances to employees of GrafTech, Global, the Borrower or the 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, Global and the Subsidiaries; (g) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted pursuant to Section 7.01(a)(iii), 7.01(b)(iv) or 7.01(c)(iv), and Cash Management Arrangements and Guarantees, letters of credit and bank guarantees in respect of Cash Management Arrangements permitted under Section 7.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangement permitted under Section 7.02(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 7.04; (i) investments resulting from pledges and deposits referred to in Section 7.02(g) or (h); (j) any investment constituting a Permitted Subsidiary Investment or any investment in an Unrestricted Subsidiary made after the Effective Date 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 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 outstanding Capital Stock (in each case, at the time of and immediately after giving effect to such investment) shall not exceed (net of return of capital of (but not return on) any such investment) $125,000,000 at any time, of which no more than $50,000,000 at any time may be invested in persons that are not Subsidiaries, and (z) 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; (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 and/or thermal management business; provided, however, that such investment is made with Equity Proceeds received not more than two years prior to the date of such investment and not otherwise used during such two-year period to make any investment under Section 7.04(k) or (m) or to effect any repurchase, redemption or prepayment of Indebtedness under Section 7.09(d)(ii); (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, (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 (iii) 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 Subsidiary or is neither engaged in the business of manufacturing graphite electrodes nor is otherwise engaged in the carbon, graphite and/or thermal management business; provided, however, that such investment is made with Equity Proceeds received 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 to make any investment under Section 7.04(k) or (m) or to effect any repurchase, redemption or prepayment of Indebtedness under Section 7.09(d)(ii); (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) 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 and Senior Notes Guarantees; and (q) investments consisting of Indebtedness permitted under Sections 7.01(a)(xii) and (xv) and 7.01(b)(v) and (viii) and unsecured Guarantees permitted under Section 7.01(b)(iv). Notwithstanding the foregoing, under no circumstances shall any Foreign Subsidiary own any of the Capital Stock of any Domestic Subsidiary. 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 7.04, and (b) any investment by Swissco in 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 such investment by Swissco (i) is made with the proceeds of an initial investment in Swissco in excess of any increase in the Swissco Guarantee Amount arising as a substantially contemporaneous consequence of the making of such initial investment and (b) does not result as a substantially contemporaneous consequence in a decrease in the Swissco Guarantee Amount.
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 7.05(i)), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person constituting a business unitunit (each of the foregoing transactions, an “Investment”), 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 Global and the BorrowerFinance; (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 7.04); (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 7.05; 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) the Intercompany Loans and intercompany loans to Global, the a Borrower or Subsidiary Loan Parties that comply with Section 7.01 (including any requirement that such Indebtedness be permitted under a paragraph of this Section 7.04), and intercompany loans to GrafTech that comply with Section 7.06;
(e) (i) loans and advances to employees of GrafTech, Global, the Borrower Borrowers or the 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, Global and the Subsidiaries;
(g) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted pursuant to Section 7.01(a)(iii), 7.01(b)(iv) or 7.01(c)(iv), and Cash Management Arrangements and Guarantees, letters of credit and bank guarantees in respect of Cash Management Arrangements permitted under Section 7.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangement permitted under Section 7.02(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 7.04;
(i) investments Investments resulting from pledges and deposits referred to in Section 7.02(g) or (h);
(j) any investment Investment constituting a Permitted Subsidiary Investment or any investment Investment in an Unrestricted Subsidiary made after the Effective Date 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 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 investmentInvestment) at any time $200,000,000300,000,000 (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 aggregate amount of such consideration for all such investments Investments made or held in Unrestricted Subsidiaries shall not exceed (net of return of capital of (but not return on) any such investmentInvestment) $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 outstanding Capital Stock (in each case, at the time of and immediately after giving effect to such investmentInvestment) shall not exceed (net of return of capital of (but not return on) any such investmentInvestment) $125,000,000 at any time, of which no more than $50,000,000 at any time may be invested or held in persons that are not Subsidiaries, and (z) 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;
(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 graphite, coke, anode, engineered solutions 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 under Section 7.09(d)(v) or to make any investment Investment under Section 7.04(k) or (m) or to effect any repurchase, redemption or prepayment of Indebtedness under Section 7.09(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, and (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 (iii) 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 Subsidiary or is neither engaged in the business of manufacturing graphite electrodes nor is otherwise engaged in the carbon, graphite graphite, coke, anode, engineered solutions 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 under Section 7.09(d)(v) or to make any investment Investment under Section 7.04(k) or (m) or to effect any repurchase, redemption or prepayment of Indebtedness under Section 7.09(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)Specified Acquisition;
(p) investments consisting Guarantees by GrafTech of Intercompany Senior LoansSupply Chain Arrangements and obligations of Global, Intercompany Senior Loan Guarantees a Borrower or any Subsidiary that do not constitute Indebtedness and Senior Notes Guaranteesin each case are entered into in the ordinary course of business; and
(q) investments Investments consisting of Indebtedness permitted under Sections 7.01(a)(xii), 7.01(b)(v) and (xv) and 7.01(b)(v7.01(c)(v) and (viii) and ), unsecured Guarantees permitted under Section 7.01(b)(iv)) and any Guarantee by any Loan Party created under a Loan Document. Notwithstanding the foregoing, (1) under no circumstances shall any Foreign Subsidiary own any of the Capital Stock of any Domestic SubsidiarySubsidiary and (2) no Investment shall be made if the making of such Investment would result in an Excess Foreign Transfer. 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 7.04, and (bB) any investment by Swissco in 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 the event and to the extent that such investment substantially simultaneously with the making of any new Investment by a Loan Party in Swissco (ix) is made with the proceeds of Indebtedness incurred under the General Debt Basket, Swissco makes an initial investment Investment under Section 7.01(j) with such proceeds in Swissco in excess a Foreign Subsidiary, then the use of such proceeds to make such Investment (and any increase in the Swissco Guarantee Amount arising as a further substantially contemporaneous consequence simultaneous Investment made with such proceeds) shall not constitute an additional usage of the making basket under Section 7.04(j), or (y) with Equity Proceeds or Available Disposition Proceeds, then the use of such initial investment proceeds to make such Investment (and (bany further substantially simultaneous Investment made with such proceeds) does not result as a substantially contemporaneous consequence in a decrease in the Swissco Guarantee Amountshall be deemed to have been made with such Equity Proceeds or Available Disposition Proceeds.
Appears in 1 contract
Investments, Loans, Advances and Acquisitions. PurchaseThe U.S. Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any Capital Stockmerger with any Person that was not 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, or make or permit to exist any investment or any other interest in, any other person Person, or make any Acquisition, except: (including a) Permitted Investments; (b) investments, loans or advances made by means of a disposition of part but not all the Capital Stock of U.S. Borrower to any Wholly-Owned Subsidiary and made by any Subsidiary under to the U.S. Borrower or any Wholly-Owned Subsidiary; and (c) Acquisitions, investments, loans or advances not otherwise permitted by this Section 7.05(i))6.04 (including, or purchase or otherwise acquire (for the avoidance of doubt, investments in one transaction or a series of transactions) any assets joint ventures and other investments in Equity Interests of any other person constituting a business unitPerson), except:
(a) investments but only if (i) existing on the Effective Date in the Capital Stock of the Subsidiaries; (ii) by GrafTech in the Capital Stock of Global 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 investment, (B) such person is not an Excluded Foreign Loan Party, and (C) any such 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 shall not be permitted under this paragraph (a) and must be permitted under another paragraph of this Section 7.04); (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 7.05; 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) the Intercompany Loans and intercompany loans to Global, the Borrower or Subsidiary Loan Parties that comply with Section 7.01 (including any requirement that such Indebtedness be permitted under a paragraph of this Section 7.04), and intercompany loans to GrafTech that comply with Section 7.06;
(e) (i) loans and advances to employees of GrafTech, Global, the Borrower or the 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, Global and the Subsidiaries;
(g) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted pursuant to Section 7.01(a)(iii), 7.01(b)(iv) or 7.01(c)(iv), and Cash Management Arrangements and Guarantees, letters of credit and bank guarantees in respect of Cash Management Arrangements permitted under Section 7.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangement permitted under Section 7.02(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 7.04;
(i) investments resulting from pledges and deposits referred to in Section 7.02(g) or (h);
(j) any investment constituting a Permitted Subsidiary Investment or any investment in an Unrestricted Subsidiary made after the Effective Date 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 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 outstanding Capital Stock (in each case, at the time of and immediately after giving effect to such investment) shall not exceed (net of return of capital of (but not return on) any such investment) $125,000,000 at any time, of which no more than $50,000,000 at any time may be invested in persons that are not Subsidiaries, and (z) the Availability Condition shall be satisfied following such investment and payment of all related costs and expenses and result after giving effect to any increase in such Acquisition, investment, loan or advance and (ii) on a pro forma basis, as if such Acquisition, investment, loan or advance (and any related incurrence or assumption of Indebtedness) had occurred at the Available Revolving Commitments due to beginning of the making most recently-ended four fiscal quarter period for which the U.S. Borrower has delivered financial statements under Section 5.01(a) or Section 5.01(b) that precedes the Determination Date for such Acquisition, investment, loan or advance, the Leverage Ratio as of such investment;
Determination Date would not exceed 3.50 to 1.00 (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 and/or thermal management business; provided, however, that such investment is made with Equity Proceeds received not more than two years prior to the date of such investment and not otherwise used during such two-year period to make any investment under Section 7.04(k) or (m) or to effect any repurchase, redemption or prepayment of Indebtedness under Section 7.09(d)(ii);
(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 without giving effect to any increase in the Available Revolving Commitments due to the making of such investment, Step-Up Election) (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 (iii) the aggregate amount of consideration paid in respect of Permitted Subsidiary Investments that are not Permitted Acquisitions and that are each Acquisition made in reliance on accordance with this paragraph clause (l) shall not exceed $50,000,000;
(m) any investment in an Unrestricted Subsidiary or constituting c), a “Permitted Subsidiary Investment made after the Effective Date in a person that is not Subsidiary or is neither engaged in the business of manufacturing graphite electrodes nor is otherwise engaged in the carbon, graphite and/or thermal management business; provided, however, that such investment is made with Equity Proceeds received 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 to make any investment under Section 7.04(k) or (m) or to effect any repurchase, redemption or prepayment of Indebtedness under Section 7.09(d)(iiAcquisition”);
(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) 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 and Senior Notes Guarantees; and
(q) investments consisting of Indebtedness permitted under Sections 7.01(a)(xii) and (xv) and 7.01(b)(v) and (viii) and unsecured Guarantees permitted under Section 7.01(b)(iv). Notwithstanding the foregoing, under no circumstances shall any Foreign Subsidiary own any of the Capital Stock of any Domestic Subsidiary. 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 7.04, and (b) any investment by Swissco in any person other than GrafTech, Global or any Subsidiary Loan Party that is not an Excluded Foreign Loan Party U.S. Borrower shall not be required to be permitted under another paragraph deliver a Compliance Certificate in order to evidence its compliance with the requirements of this Section 7.04 to the extent that such investment by Swissco clause (ic) is made in connection with the proceeds of an initial investment in Swissco in excess of any increase in the Swissco Guarantee Amount arising as a substantially contemporaneous consequence of the making of such initial investment and (b) does not result as a substantially contemporaneous consequence in a decrease in the Swissco Guarantee Amount.Acquisition, investment, loan or advance. -85-
Appears in 1 contract
Samples: Credit Agreement (Miller Herman Inc)
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 7.05(i6.05(i)), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person constituting a business unitunit (each of the foregoing transactions, an “Investment”), except:
(a) investments 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 Global and the Borrowerany Domestic Subsidiary that is a Guarantor; (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 Luxembourg Holdco or Swissco in excess of any increase in the Swissco Guarantee Amount (other than an Investment made by Luxembourg Parent, Luxembourg Holdco or Swissco) 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 7.046.04, 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 investmentInvestment); 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 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 7.056.05; 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) the Intercompany Loans and (i) intercompany loans to Global, the a Borrower or Subsidiary Loan Parties that comply with Section 7.01 6.01 (including any requirement that such Indebtedness be permitted under a paragraph one or more specified paragraphs of this Section 7.04)6.04) and with the Loan Party Transfer Restriction, and intercompany loans to GrafTech that comply with Section 7.066.06 and (ii) intercompany loans made in compliance with the Loan Party Transfer Restriction by Luxembourg Parent, Luxembourg Holdco or Swissco to 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 direct or indirect subsidiary of Luxembourg Parent and (B) $100,000,000 with respect to the aggregate of such Investments made to all direct or indirect subsidiaries of Luxembourg Parent;
(e) (i) loans and advances to employees of GrafTech, Global, the Borrower 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, Global GrafTech and the Subsidiaries;
(g) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted pursuant to Section 7.01(a)(iii), 7.01(b)(iv) or 7.01(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 7.01 6.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangement Arrangements permitted under Section 7.02(q6.02(q);
(h) investmentsInvestments, other than investments Investments listed in paragraphs (a) through (g) of this Section, existing that existed on the Restatement Effective Date and are set forth on Schedule 7.046.04;
(i) investments Investments resulting from pledges and deposits referred to in Section 7.02(g6.02(g) or (h);
(j) any investment Investment constituting a Permitted Subsidiary Investment or any investment in an Unrestricted Subsidiary made after the Restatement Effective Date 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 $200,000,000Date; provided, however, that (xi) either (A) the 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% Leverage Ratio as of the outstanding Capital Stock last day of the most recent fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (in each case, at the time of and immediately b) (recomputed on a pro forma basis after giving effect to such investmentInvestment 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 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, (net of return of capital of (but not return on) any such investment) $125,000,000 at any time, of which no more than $50,000,000 at any time may be invested in persons that are not Subsidiaries, and (zii) 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 (iii) such Investment shall be made in compliance with the Available Revolving Commitments due to the making of such investmentLoan Party Transfer Restriction;
(k) any investment 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 investmentInvestment) that is engaged in the business of manufacturing graphite electrodes or is otherwise engaged in the carbon, graphite graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that (i) such investment 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 Investment and not otherwise used during such two-year period to make any investment Investment under this Section 7.04(k6.04(k) or Section 6.04(m) and (mii) or to effect any repurchase, redemption or prepayment of Indebtedness under Section 7.09(d)(ii)such Investment is made in compliance with the Loan Party Transfer Restriction;
(l) any investment 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 Investment and payment of all related costs and expenses and after giving effect to any increase in the unused 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 (iii) 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 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 graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, in each case that (i) such investment 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 Investment is entered into and not otherwise used during such 90-day period to make any investment Investment under Section 7.04(k6.04(k) or this Section 6.04(m) and (mii) or to effect any repurchase, redemption or prepayment of Indebtedness under Section 7.09(d)(ii)such Investment is made in compliance with the Loan Party Transfer Restriction;
(n) investments 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) investments consisting Guarantees by GrafTech of Senior NotesSupply Chain Arrangements and obligations of GrafTech, Senior Notes Refinancing Debt, Convertible Debentures a Borrower or Convertible Debenture Refinancing Debt repurchased, redeemed or otherwise acquired to any other Subsidiary that do not constitute Indebtedness and in each case are entered into in the extent permitted in Section 7.09(d)ordinary course of business;
(p) investments consisting any Guarantee by any Loan Party created under a Loan Document;
(q) [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 Intercompany Senior Loans, Intercompany Senior Loan Guarantees and Senior Notes Guaranteesall 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
(qs) investments consisting Investments constituting intercompany loans to Finance and Luxembourg Holdco (i) of Indebtedness permitted under Sections 7.01(a)(xii) proceeds of Senior Notes and (xvii) and 7.01(b)(vof proceeds of other Indebtedness to fund Investments made in reliance on Section 6.04(j)(B) and (viii) and unsecured Guarantees permitted under Section 7.01(b)(iv)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 (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 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 the Loan Party Transfer Restriction. For the avoidance of doubt, (a) 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 7.04, and (b) any investment by Swissco in 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 such investment by Swissco (i) is made with the proceeds of an initial investment in Swissco in excess of any increase in the Swissco Guarantee Amount arising as a substantially contemporaneous consequence of the making of such initial investment and (b) does not result as a substantially contemporaneous consequence in a decrease in the Swissco Guarantee Amount6.04.
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 7.05(i6.05(i)), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person constituting a business unitunit (each of the foregoing transactions, an “Investment”), except:
(ai) investments 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 Global and the Borrowerany Domestic Subsidiary; (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 Luxembourg Holdco or Swissco in excess of any increase in the Swissco Guarantee Amount (other than an Investment made by Luxembourg Parent, Luxembourg Holdco or Swissco) 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 7.046.04); (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);
(bj) Permitted Investments and investments Investments that were Permitted Investments when made;
(ck) investments Investments arising out of the receipt by Global or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 7.056.05; 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) the Intercompany Loans and (i) intercompany loans to Global, the a Borrower or Subsidiary Loan Parties that comply with Section 7.01 6.01 (including any requirement that such Indebtedness be permitted under a paragraph one or more specified paragraphs of this Section 7.046.04), and intercompany loans to GrafTech that comply with Section 7.066.06 and (ii) intercompany loans by Luxembourg Parent, Luxembourg Holdco or Swissco to 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 direct or indirect subsidiary of Luxembourg Parent and (B) $100,000,000 with respect to the aggregate of such Investments made to all direct or indirect subsidiaries of Luxembourg Parent;
(em) (i) loans and advances to employees of GrafTech, Global, the Borrower 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, Global GrafTech and the Subsidiaries;
(go) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted pursuant to Section 7.01(a)(iii6.01(a)(iii), 7.01(b)(iv6.01(b)(iv) or 7.01(c)(iv6.01(c)(iv), and Cash Management Arrangements and Guarantees, letters of credit and bank guarantees in respect of Cash Management Arrangements permitted under Section 7.01 6.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangement Arrangements permitted under Section 7.02(q6.02(q);
(hp) investmentsInvestments, other than investments Investments listed in paragraphs (a) through (g) of this Section, existing that existed on the Restatement Effective Date and are set forth on Schedule 7.046.04;
(iq) investments Investments resulting from pledges and deposits referred to in Section 7.02(g6.02(g) or (h);
(jr) any investment Investment constituting a Permitted Subsidiary Investment or any investment in an Unrestricted Subsidiary made after the Restatement Effective Date 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 $200,000,000Date; provided, however, that (xi) either (A) the 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% Leverage Ratio as of the outstanding Capital Stock last day of the most recent fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (in each case, at the time of and immediately b) (recomputed on a pro forma basis after giving effect to such investmentInvestment 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 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 (net of return of capital of (but not return on) any such investment) $125,000,000 at any time, of which no more than $50,000,000 at any time may be invested in persons that are not Subsidiaries400,000,000, and (zii) 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 investmentexpenses;
(ks) any investment 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 investmentInvestment) that is engaged in the business of manufacturing graphite electrodes or is otherwise engaged in the carbon, graphite graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such investment 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 Investment and not otherwise used during such two-year period under Section 6.09(d)(v) or to make any investment Investment under this Section 7.04(k6.04(k) or (m) or to effect any repurchase, redemption or prepayment of Indebtedness under Section 7.09(d)(ii6.04(m);
(lt) any investment 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 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, and (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 (iii) 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 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 graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such investment 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 Investment is entered into and not otherwise used during such 90-day period under Section 6.09(d)(v) or to make any investment Investment under Section 7.04(k6.04(k) or (m) or to effect any repurchase, redemption or prepayment of Indebtedness under this Section 7.09(d)(ii6.04(m);
(nv) investments Investments constituting Permitted Subsidiary Investments or investments Investments in Unrestricted Subsidiaries made after the Restatement Effective Date with Capital Stock of GrafTech (other than Disqualified Stock);
(ow) investments consisting Guarantees by GrafTech of Senior NotesSupply Chain Arrangements and obligations of GrafTech, Senior Notes Refinancing Debt, Convertible Debentures a Borrower or Convertible Debenture Refinancing Debt repurchased, redeemed or otherwise acquired to any other Subsidiary that do not constitute Indebtedness and in each case are entered into in the extent permitted in Section 7.09(d)ordinary course of business;
(px) investments consisting of Intercompany Senior Loans, Intercompany Senior Loan Guarantees and Senior Notes Guarantees; and
(q) investments Investments consisting of Indebtedness permitted under Sections 7.01(a)(xii6.01(a)(xii), 6.01(b)(v) and (xv) and 7.01(b)(v) and (viii) and 6.01(c)(v), unsecured Guarantees permitted under Section 7.01(b)(iv6.01(b)(iv) and any Guarantee by any Loan Party created under a Loan Document;
(y) Investments resulting from contributions to Swissco referred to in Section 6.05(f);
(z) 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 (other than a Luxembourg Finance Subsidiary). For the avoidance of 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 7.046.04, and (bB) any investment by Swissco in 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 the event and to the extent that such investment substantially simultaneously with the making of any new Investment by a Loan Party in Luxembourg Parent, Luxembourg Holdco or Swissco (ix) is made with the proceeds of Indebtedness incurred under the General Debt Basket, Luxembourg Parent, Luxembourg Holdco or Swissco makes an initial investment Investment under Section 6.04(j) with such proceeds in Swissco in excess a Foreign Subsidiary, then the use of such proceeds to make such Investment (and any increase in the Swissco Guarantee Amount arising as a further substantially contemporaneous consequence simultaneous Investment made with such proceeds) shall not constitute an additional usage of the making basket under Section 6.04(d) or 6.04(j), or (y) with Equity Proceeds or Available Disposition Proceeds, then the use of such initial investment proceeds to make such Investment (and (bany further substantially simultaneous Investment made with such proceeds) does not result as a substantially contemporaneous consequence in a decrease in the Swissco Guarantee Amountshall 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 7.05(i6.05(i)), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person constituting a business unitunit (each of the foregoing transactions, an “Investment”), except:
(ai) investments 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 Global and the Borrowerany Domestic Subsidiary; (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 Luxembourg Holdco or Swissco in excess of any increase in the Swissco Guarantee Amount (other than an Investment made by Luxembourg Parent, Luxembourg Holdco or Swissco) 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 7.046.04); (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 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);
(bj) Permitted Investments and investments Investments that were Permitted Investments when made;
(ck) investments Investments arising out of the receipt by Global or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 7.056.05; 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) the Intercompany Loans and (i) intercompany loans to Global, the a Borrower or Subsidiary Loan Parties that comply with Section 7.01 6.01 (including any requirement that such Indebtedness be permitted under a paragraph one or more specified paragraphs of this Section 7.046.04), and intercompany loans to GrafTech that comply with Section 7.066.06 and (ii) intercompany loans by Luxembourg Parent, Luxembourg Holdco or Swissco to 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 direct or indirect subsidiary of Luxembourg Parent and (B) $100,000,000 with respect to the aggregate of such Investments made to all direct or indirect subsidiaries of Luxembourg Parent;
(em) (i) loans and advances to employees of GrafTech, Global, the Borrower 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, Global GrafTech and the Subsidiaries;
(go) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted pursuant to Section 7.01(a)(iii6.01(a)(iii), 7.01(b)(iv6.01(b)(iv) or 7.01(c)(iv6.01(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 7.01 6.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangement Arrangements permitted under Section 7.02(q6.02(q);
(hp) investmentsInvestments, other than investments Investments listed in paragraphs (a) through (g) of this Section, existing that existed on the Restatement Effective Date and are set forth on Schedule 7.046.04;
(iq) investments Investments resulting from pledges and deposits referred to in Section 7.02(g6.02(g) or (h);
(jr) any investment Investment constituting a Permitted Subsidiary Investment or any investment in an Unrestricted Subsidiary made after the Restatement Effective Date 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 $200,000,000Date; provided, however, that (xi) either (A) the 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% Leverage Ratio as of the outstanding Capital Stock last day of the most recent fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (in each case, at the time of and immediately b) (recomputed on a pro forma basis after giving effect to such investmentInvestment 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 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 (net of return of capital of (but not return on) any such investment) $125,000,000 at any time, of which no more than $50,000,000 at any time may be invested in persons that are not Subsidiaries400,000,000, and (zii) 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 investmentexpenses;
(ks) any investment 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 investmentInvestment) that is engaged in the business of manufacturing graphite electrodes or is otherwise engaged in the carbon, graphite graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such investment 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 Investment and not otherwise used during such two-year period under Section 6.09(d)(v) or to make any investment Investment under this Section 7.04(k6.04(k) or (m) or to effect any repurchase, redemption or prepayment of Indebtedness under Section 7.09(d)(ii6.04(m);
(lt) any investment 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 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, and (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 (iii) 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 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 graphite, coke, anode, engineered solutions and/or thermal management business; provided, however, that such investment 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 Investment is entered into and not otherwise used during such 90-day period under Section 6.09(d)(v) or to make any investment Investment under Section 7.04(k6.04(k) or (m) or to effect any repurchase, redemption or prepayment of Indebtedness under this Section 7.09(d)(ii6.04(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) 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 and Senior Notes Guarantees; and
(q) investments consisting of Indebtedness permitted under Sections 7.01(a)(xii) and (xv) and 7.01(b)(v) and (viii) and unsecured Guarantees permitted under Section 7.01(b)(iv). Notwithstanding the foregoing, under no circumstances shall any Foreign Subsidiary own any of the Capital Stock of any Domestic Subsidiary. 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 7.04, and (b) any investment by Swissco in 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 such investment by Swissco (i) is made with the proceeds of an initial investment in Swissco in excess of any increase in the Swissco Guarantee Amount arising as a substantially contemporaneous consequence of the making of such initial investment and (b) does not result as a substantially contemporaneous consequence in a decrease in the Swissco Guarantee Amount.
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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 7.05(i6.05(i)), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other person constituting a business unitunit (each of the foregoing transactions, an “Investment”), 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 Global and the BorrowerSeadrift, GrafTech USA or Holdings; (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 7.046.04); (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 7.056.05; 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) the Intercompany Loans and (i) intercompany loans to Global, the a Borrower or Subsidiary Loan Parties that comply with Section 7.01 6.01 (including any requirement that such Indebtedness be permitted under a paragraph one or more specified paragraphs of this Section 7.046.04), and intercompany loans to GrafTech that comply with Section 7.066.06 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, Global, the Borrower 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, Global GrafTech and the Subsidiaries;
(g) Interest/Exchange Rate Protection Agreements and Commodity Rate Protection Agreements permitted pursuant to Section 7.01(a)(iii6.01(a)(iii), 7.01(b)(iv6.01(b)(iv) or 7.01(c)(iv6.01(c)(iv), and Cash Management Arrangements and Guarantees, letters of credit and bank guarantees in respect of Cash Management Arrangements permitted under Section 7.01 6.01 and Liens securing Cash Management Arrangements and Guarantees of Cash Management Arrangement Arrangements permitted under Section 7.02(q6.02(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 7.046.04;
(i) investments Investments resulting from pledges and deposits referred to in Section 7.02(g6.02(g) or (h);
(j) any investment Investment constituting a Permitted Subsidiary Investment or any investment in an Unrestricted Subsidiary made after the Effective Date 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 $200,000,000Date; provided, however, that (x) the 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% Leverage Ratio as of the outstanding Capital Stock last day of the most recent fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (in each case, at the time of and immediately b) (recomputed on a pro forma basis after giving effect to such investmentInvestment as if such Investment had occurred on the first day of the relevant period for such computation) shall not exceed (net of return of capital of (but not return on) any such investment) $125,000,000 at any time, of which no more is less than $50,000,000 at any time may be invested in persons that are not Subsidiariesor equal to 3.25 to 1.00, and (zy) 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 investmentexpenses;
(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 graphite, coke, anode, engineered solutions 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 under Section 6.09(d)(v) or to make any investment Investment under this Section 7.04(k6.04(k) or (m) or to effect any repurchase, redemption or prepayment of Indebtedness under Section 7.09(d)(ii6.04(m);
(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, and (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 (iii) 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 graphite, coke, anode, engineered solutions 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 under Section 6.09(d)(v) or to make any investment Investment under Section 7.04(k6.04(k) or (m) or to effect any repurchase, redemption or prepayment of Indebtedness under this Section 7.09(d)(ii6.04(m);
(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 Guarantees by GrafTech of Senior NotesSupply Chain Arrangements and obligations of GrafTech, Senior Notes Refinancing Debt, Convertible Debentures a Borrower or Convertible Debenture Refinancing Debt repurchased, redeemed or otherwise acquired to any other Subsidiary that do not constitute Indebtedness and in each case are entered into in the extent permitted in Section 7.09(d);ordinary course of business; and
(p) investments consisting of Intercompany Senior Loans, Intercompany Senior Loan Guarantees and Senior Notes Guarantees; and
(q) investments Investments consisting of Indebtedness permitted under Sections 7.01(a)(xii6.01(a)(xii), 6.01(b)(v) and (xv) and 7.01(b)(v) and (viii) and 6.01(c)(v), unsecured Guarantees permitted under Section 7.01(b)(iv6.01(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 SubsidiarySubsidiary except as permitted by and in accordance with Section 9.19. 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 7.046.04, and (bB) any investment by Swissco in 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 the event and to the extent that such investment substantially simultaneously with the making of any new Investment by a Loan Party in Swissco (ix) is made with the proceeds of Indebtedness incurred under the General Debt Basket, Swissco makes an initial investment Investment under Section 6.01(j) with such proceeds in Swissco in excess a Foreign Subsidiary, then the use of such proceeds to make such Investment (and any increase in the Swissco Guarantee Amount arising as a further substantially contemporaneous consequence simultaneous Investment made with such proceeds) shall not constitute an additional usage of the making basket under Section 6.04(d), (j), or (y) with Equity Proceeds or Available Disposition Proceeds, then the use of such initial investment proceeds to make such Investment (and (bany further substantially simultaneous Investment made with such proceeds) does not result as a substantially contemporaneous consequence in a decrease in the Swissco Guarantee Amountshall be deemed to have been made with such Equity Proceeds or Available Disposition Proceeds.
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