Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliates, except: (a) Permitted Investments; (b) investments by the Company or a Subsidiary in the capital stock of its Subsidiaries; (c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary; (d) Guarantees constituting Indebtedness permitted by Section 6.01; (e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries; (f) Investments existing on the Effective Date not otherwise permitted under this Agreement; (g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary; (h) Permitted Acquisitions; (i) Swap Agreements not entered into for speculative purposes; (j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters; (k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)); (l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons; (m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (Tapestry, Inc.), Credit Agreement (Tapestry, Inc.), Credit Agreement (Tapestry, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Capri Holdings will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger merger, amalgamation or consolidation with with, or as a Division Successor pursuant to the Division of, any Person that was not a wholly owned Subsidiary prior to such merger merger, amalgamation, consolidation or consolidationDivision) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliates(collectively, “Investments”), except:
(a) Permitted InvestmentsInvestments and Investments that were Permitted Investments when made;
(b) investments Investments by the Company Capri Holdings or a Subsidiary in the capital stock of its Subsidiaries;
(c) loans or advances made by the Company Capri Holdings to, and Guarantees by the Company Capri Holdings of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company Capri Holdings or any other Subsidiary, provided that any resulting Indebtedness is permitted pursuant to Section 6.01;
(d) (i) Guarantees constituting Indebtedness permitted by pursuant to Section 6.016.01 and (ii) Guarantees of obligations not constituting Indebtedness made in the ordinary course of business, provided that the Guarantees permitted under this clause (ii) could not in the aggregate reasonably be expected to have a Material Adverse Effect;
(e) advances or loans made in the ordinary course of business to officers, directors, employees and agents of the Company and Capri Holdings or any of its Subsidiaries;
(f) Investments existing on the Effective Date and described in Schedule 6.04 hereto and any renewals, amendments and replacements thereof that do not otherwise permitted under this Agreementincrease the amount thereof (other than in respect of capitalized interest and reasonable expenses);
(g) Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of suppliers, customers and other third parties or in settlement of delinquent obligations of, or other disputes with, customers, suppliers and other third parties arising in the ordinary course of business or in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company Capri Holdings or any Subsidiary;
(h) Permitted AcquisitionsAcquisitions and Investments of a Person or business acquired in such Permitted Acquisition so long as such Investment was not made in contemplation of such Acquisition; provided that if, as a result of a Permitted Acquisition, (i) a new Subsidiary shall be created and such Subsidiary is a Material Subsidiary or (ii) any then existing Subsidiary shall become a Material Subsidiary, in each case such Subsidiary shall thereafter become a Guarantor and, if applicable, Grantor, in accordance with Section 5.09; and provided, further, that no Permitted Acquisition or other Investments shall be permitted to be made under this Section 6.04(h) during the Covenant Relief Period;
(i) Swap Agreements not entered into for speculative purposespermitted by Section 6.05;
(j) Investments in connection with joint ventures in an amount not to exceed $100,000,000 in the ownershipaggregate; provided, development, leasing, acquisition, construction or improvement of that no Investments shall be permitted to be made under this Section 6.04(j) during the Corporate HeadquartersCovenant Relief Period;
(k) Investments indemnities made and security deposits and surety bonds issued in joint ventures in an aggregate amount not to exceed the greater ordinary course of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))business;
(l) Investmentsindemnities made in the Loan Documents;
(m) accounts, chattel paper and notes receivable arising from the sale or lease of goods or the performance of services in addition the ordinary course of business;
(n) promissory notes and other non-cash consideration that is permitted to be received in connection with Dispositions permitted by Section 6.03;
(o) Investments permitted under clauses (a) through (j) of this Section 6.04 made held by a Subsidiary acquired after the Effective Date or of a Person merged into a Loan Party or any Subsidiary of a Loan Party, in either case, in a transaction permitted by Section 6.03 after the Effective Date to the extent such Investments were not made in contemplation of or in connection with such merger, amalgamation or consolidation and were in existence on the date of such merger, amalgamation or consolidation;
(p) loans and advances to any direct or indirect parent of Capri Holdings in lieu of, and not in excess of the amount (after giving effect to any other loans, advances or Restricted Payments in respect thereof), Restricted Payments to the extent permitted to be made to such direct or indirect parent in accordance with Section 6.07(d), (e) or (f);
(q) Investments for which no consideration is provided by any Loan Party or any Subsidiary;
(r) Investments to the extent that payment for such Investments is made solely in exchange for Equity Interests of Capri Holdings;
(s) other Investments in any Person or Persons made after the date hereof, in an aggregate outstanding amount not to exceed $500,000,000 500,000,000; provided that, during the Covenant Relief Period, the aggregate amount of Investments made pursuant to this Section 6.04(s) shall not exceed $100,000,000 in the aggregate at any time outstanding in any Person or Personsoutstanding;
(mt) Investments so long as prior to making such Investment before and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) on a Pro Forma Basis the Company Leverage Ratio as at the last day of the most recently ended fiscal quarter of Capri Holdings for which financial statements are available does not exceed 3.75 to 1.00; provided, that no Investments may be made pursuant to this Section 6.04(t) during the Covenant Relief Period; and
(u) the Transactions. Any Investment in any Person other than a Loan Party that is otherwise permitted by this Section 6.04 may be made through intermediate Investments in Subsidiaries that are not Loan Parties and such intermediate Investments shall be disregarded for purposes of determining the outstanding amount of Investments pursuant to any clause set forth above. For purposes of compliance with this Section 6.076.04, the amount of any Investment shall be the amount initially invested, without adjustment for subsequent increases or decreases in the value of such Investment, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of such Investment.
Appears in 2 contracts
Samples: Credit Agreement (Capri Holdings LTD), Credit Agreement (Capri Holdings LTD)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries to, purchasePurchase, hold or acquire (including including, without limitation, pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including including, without limitation, 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, or purchase or otherwise acquire (in one transaction or a series of transactionstransactions (including, without limitation, pursuant to any merger)) any Person or any assets of any other Person constituting a business unit unit, or the rights of any licensee under a trademark license to such licensee from the Company or permit any of its AffiliatesSubsidiaries to do so, except:
(ai) Permitted Investments;
(bii) investments and Guarantees existing on the date hereof and set forth in Schedule 5.02(i);
(iii) investments made by the Company in the equity securities or a other ownership interests of any of its Subsidiaries and made by any such Subsidiary in the capital stock equity securities or other ownership interests of its Subsidiariesany other such Subsidiary;
(civ) loans or advances made by the Company to, to any of its Affiliates and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any such Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made Affiliate of the Company, in each case in the ordinary course of business to employees of the Company and its Subsidiariesbusiness;
(fv) Investments existing on acquisitions made by the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement Company from any of its Subsidiaries or made by any defaulted Indebtedness or other liability owed to such Subsidiary from the Company or any other such Subsidiary;
(hvi) Permitted Acquisitions;any transaction permitted by Section 5.02(f); and
(ivii) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined if at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment thereof and immediately after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has shall have occurred and is continuing be continuing, other investments, loans, advances, Guarantees and acquisitions, provided that the sum of (A) the aggregate consideration paid by the Company or would occur any of its Subsidiaries in connection with all such acquisitions, (B) the aggregate amount of all such other investments, loans and advances outstanding and (iiC) the Company amount of obligations and liabilities outstanding in the aggregate that is in compliance with Section 6.07Guaranteed pursuant to all such other Guarantees, shall not exceed $5,000,000 at any time.
Appears in 2 contracts
Samples: Letter of Credit and Reimbursement Agreement (Jersey Central Power & Light Co), Letter of Credit and Reimbursement Agreement (Firstenergy Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investmentsinvestments in cash and Cash Equivalents;
(b) investments in existence on the date of this Agreement and described in Schedule 6.04;
(c) investments by the Company or a Subsidiary Borrower and its Subsidiaries in the capital stock of its their respective Subsidiaries; provided, that the aggregate amount of investments (together with the aggregate amount of loans and advances described in Section 6.04(d)), as of any date of determination, made by the Borrower or the other Loan Parties in the capital stock of their respective Subsidiaries who are not Loan Parties does not at any time exceed an amount equal to 50% of the EBITDA for the period of four consecutive fiscal quarters having most recently ended prior to such date of determination and for which financial statements are available (with the amount of any such investments being the original cost of such investment, less all repayments, returns, dividends and distributions, in each case received in cash in respect of such investment and less all liabilities effectively assumed by a person other than any Loan Party or any Subsidiary thereof in connection with the sale of any such investment);
(cd) loans or advances made by the Company to, and Guarantees by Borrower or any of its Subsidiaries to the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company Borrower or any other Subsidiary; provided, that the aggregate amount of loans and advances (together with the aggregate amount of investments described in Section 6.04(c)) made by the Borrower or the other Loan Parties to Subsidiaries who are not Loan Parties that are at any time outstanding does not, as of any date of determination, exceed an amount equal to 50% of the EBITDA for the period of four consecutive fiscal quarters having most recently ended prior to such date of determination and for which financial statements are available;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) Permitted Acquisitions;
(g) loans and advances to employees of the Borrower or loans made any Subsidiaries in the ordinary course of business (including for travel, entertainment and relocation expenses and to employees finance the purchase of Equity Interests of the Company Borrower) in an aggregate amount for the Borrower and its SubsidiariesSubsidiaries not to exceed $5 million at any time outstanding;
(fh) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments investments received in connection with the bona fide bankruptcy or reorganization of any Person or in settlement of obligations of, or disputes with, any defaulted Indebtedness or other liability owed to Person arising in the Company or any Subsidiary;
(h) Permitted Acquisitionsordinary course of business;
(i) Swap Agreements not entered into for speculative purposespermitted by Section 6.06;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate HeadquartersTransfer Pricing Transactions;
(k) Investments investments consisting of extensions of credit in joint ventures the nature of accounts receivable or notes receivable arising from the grant of trade credit in an aggregate amount not to exceed the greater ordinary course of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))business;
(l) Investmentsto the extent constituting investments, performance guarantees of obligations of the Borrower’s Subsidiaries in the ordinary course of business; and
(m) in addition to Investments investments otherwise expressly permitted under clauses (a) through (j) of by this Section 6.04 made after 6.04, investments, loans and advances by the Effective Date Borrower or any of its Subsidiaries in an aggregate amount (valued at cost) not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event 30 million during the term of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (ExlService Holdings, Inc.), Credit Agreement
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Credit Party will, nor will not, and will not it permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Credit Party and a Wholly-Owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesotherwise), except:
(ai) Permitted Investments, subject to control agreements (with respect to Credit Parties) in favor of the Administrative Agent for the benefit of the Secured Creditors to the extent required by the Guaranty and Collateral Agreement;
(bii) investments (w) constituting extensions of credit by Target to Holdings or Mergersub with respect to any unpaid amount relating to Top-Off Purchases, (x) by the Company or a Subsidiary Credit Parties and their Subsidiaries (excluding Target and its Subsidiaries) existing on the date hereof in the capital stock or other Equity Interests of their respective Subsidiaries and Excluded Subsidiaries, (y) by Target and its SubsidiariesSubsidiaries existing on the Exchange Closing Date and (z) constituting the acquisition of Equity Interests in Target pursuant to the Transaction;
(ciii) investments, loans or advances made by a Credit Party to any other Credit Party (other than Holdings) and by any Subsidiary that is not a Subsidiary Guarantor to any other Subsidiary that is not a Subsidiary Guarantor;
(iv) Guarantees permitted by Section 11.01 (excluding clauses (xxii) and (xxiii) thereof);
(v) investments, loans and advances in existence on the Company todate of this Agreement and described in Schedule 11.04 and any extensions or renewals thereof which do not increase the amount thereof or conversions of any such loans or advances to equity investments;
(vi) loans, advances or other extensions of credit made by a Credit Party or any Subsidiary to its employees, officers and Guarantees directors in the ordinary course of business for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $10,000,000 in the aggregate at any one time outstanding;
(vii) notes payable, or stock or other securities issued by Account Debtors to a Credit Party or any Subsidiary pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in the Company ordinary course of obligations ofbusiness;
(viii) Guarantees, investments, loans and advances not otherwise permitted under this Section 11.04 (including (a) Guarantees, investments, loans or advances made by or to or on behalf of any SubsidiaryCredit Party to or by or on behalf of any Subsidiary which is not a Subsidiary Guarantor, and (b) Guarantees, investments, loans or advances made by any Subsidiary to, and Guarantees by Credit Party or any Subsidiary which is not a Subsidiary Guarantor to or on behalf of obligations ofany Excluded Subsidiary, the Company or (c) investments in any other Subsidiary;
Joint Venture and minority interests and (d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans investments made in order to consummate Acquisitions (other than the ordinary course Terra Acquisition)); provided that (1) no Event of Default shall have occurred and be continuing or would result therefrom, (2) in the case of any Acquisition, (A) such Acquisition shall only comprise a business to employees or those assets of a business, of the Company type generally conducted by the Borrower and its Subsidiaries;
(f) Investments existing on Subsidiaries as of the Effective Date not otherwise permitted under this Agreement;
or a business reasonably related thereto or a reasonable extension or expansion thereof and (gB) Investments received in connection with such Acquisition shall be consensual and shall have been approved by the bona fide settlement board of any defaulted Indebtedness directors or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement equivalent governing body of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed acquiree or the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date parent of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07.acquiree and
Appears in 2 contracts
Samples: Bridge Loan Agreement (CF Industries Holdings, Inc.), Bridge Loan Agreement (CF Industries Holdings, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any other Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesdivision, except:
(a) Permitted Investments;
(b) investments by Equity Interests existing on the Company or a Subsidiary date hereof in the capital stock of its Subsidiaries;
(c) loans or advances made by the Company to, Borrower to any Guarantor and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company Borrower or any other SubsidiarySubsidiary that is a Guarantor;
(d) the Acquisition of the Company;
(e) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;8.01; and
(f) Investments existing Acquisitions of Persons engaged in business of the type conducted by the Borrower and the Subsidiaries on the Effective Date not otherwise permitted under date of execution of this Agreement;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
Agreement and businesses reasonably related thereto, provided that (i) Swap Agreements not entered into the total cash and non-cash consideration paid and Indebtedness assumed or incurred by Borrower or any Subsidiary for speculative purposes;
all of such Acquisition(s) (j) Investments in connection with excluding the ownership, development, leasing, acquisition, construction or improvement Acquisition of the Corporate Headquarters;
(kCompany) Investments shall not exceed $20,000,000 in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 aggregate, and (ii) 2.75% of Total Assets (determined at the time of each any such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) orAcquisition, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing exists or would occur and (ii) the Company result or is in compliance with Section 6.07projected to result from any such Acquisition.
Appears in 2 contracts
Samples: Credit Agreement (Pegasus Systems Inc), Credit Agreement (Pegasus Solutions Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, Subsidiary Borrowers and their respective Subsidiaries will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or (the rights of any licensee under a trademark license foregoing collectively referred to such licensee from the Company or any of its Affiliatesas "Investments"), exceptexcept for:
(a) Permitted Investments;
(b) Investments existing on the Effective Date, and set forth on Schedule 6.04, to the extent such investments by the Company or a Subsidiary in the capital stock would not be permitted under any other clause of its Subsidiariesthis Section;
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementin any Subsidiary of a Borrower;
(gd) loans or advances by any Borrower to any other Borrower;
(e) Investments received in connection with the bona fide bankruptcy or reorganization of, or settlement of any defaulted Indebtedness or other liability owed to delinquent accounts and disputes with, customers and suppliers, in each case in the Company or any Subsidiaryordinary course of business;
(hf) Permitted Acquisitions;loans or advances to employees for the purpose of travel, entertainment or relocation in the ordinary course of business; and
(i) Swap Agreements not entered into for speculative purposes;
(jg) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures wholly owned Subsidiaries which are not Borrowers in an aggregate amount not to exceed exceed, in the greater of aggregate after the Effective Date, (i) $100,000,000 and 25,000,000, plus (ii) 2.75% of Total Assets (determined at such additional amounts as the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) orSubsidiary Borrowers may determine, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so as long as during the ninety (90) day period prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto to the date of such Investment, and for the ninety (i90) day period following (on a projected basis) the date of such Investment, there shall be daily Excess Availability of at least $400,000,000; provided that no Default or such Investment may be made after the occurrence and during the continuance of a Specified Event of Default has occurred and is continuing or if an Event of Default would occur and (ii) the Company is in compliance with Section 6.07arise therefrom.
Appears in 2 contracts
Samples: Credit Agreement (Dillards Inc), Credit Agreement (Dillards Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliates(“Investments”), except:
(a) cash and Permitted Investments;
(b) investments by Investments existing on the Company date hereof and any modification, replacement, renewal, reinvestment or a Subsidiary in the capital stock of its Subsidiariesextension thereof;
(c) loans or advances or other Investments made by the Company to(i) any Loan Party to any other Loan Party, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made (ii) by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, that is not a Loan Party to the Company Borrower or any other SubsidiarySubsidiary and (iii) by any Loan Party to a Subsidiary that is not a Loan Party in an aggregate amount outstanding not to exceed $100,000,000;
(d) Guarantees constituting Indebtedness permitted by Section 6.01Investments consisting of intercompany cash balances among the Borrower and its Subsidiaries in connection with liquidity management in the ordinary course of business;
(e) loans or advances or loans made in the ordinary course of business to officers, directors and employees of the Company Borrower or the Subsidiaries (i) for reasonable and its Subsidiariescustomary business-related travel, entertainment, relocation and analogous ordinary business purposes, (ii) in connection with such Person’s purchase of equity interests of the Borrower and the Subsidiaries and (iii) for purposes not described in the foregoing clauses (i) and (ii), to the extent permitted by law, in an aggregate principal amount outstanding not to exceed $5,000,000;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementin Swap Agreements;
(g) Investments received held by a Subsidiary acquired after the date hereof or of a corporation merged or consolidated with a Subsidiary in accordance with Section 6.02 after the date hereof to the extent that such investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the bona fide settlement date of any defaulted Indebtedness such acquisition, merger or other liability owed to the Company or any Subsidiaryconsolidation;
(h) Permitted Acquisitions;; provided that, any Permitted Acquisition by any Loan Party of assets located outside of the United States (or any Investment by a Loan Party in a subsidiary that is not a Guarantor for the purpose of consummating a Permitted Acquisition) shall only be permitted if the Investment in such Permitted Acquisition is otherwise permitted pursuant to clause (i) below; and
(i) Swap Agreements Permitted Acquisitions not entered into for speculative purposes;
permitted pursuant to clause (jg) above and other Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.7515% of Total the Consolidated Net Tangible Assets of the Borrower as of such date, net of any return representing return of capital or repayment of Indebtedness in respect of any such investment made pursuant to this clause (determined h) and valued at the time of each such investment by reference the making thereof. Notwithstanding anything to herein to the Company’s contrary, in the event that (i) Consolidated Total Debt of the Borrower as of the last day of any fiscal quarter for which financial statements most recently have been delivered to the Administrative Agent pursuant to Section 5.01(a) or clause (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(aa) or (b), the most recent financial statements referred as applicable, of Section 5.01 to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) Consolidated EBITDA of the Company Borrower for the last four fiscal quarters ending on the last day of such fiscal quarter is less than 3.25:1, then the covenant set for in compliance with this Section 6.076.03 shall cease to be of any further force and effect.
Appears in 2 contracts
Samples: 364 Day Bridge Credit Agreement (Dr Pepper Snapple Group, Inc.), Credit Agreement (Dr Pepper Snapple Group, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger Equity Interests in or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, of or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting that are substantial in relation to the Company and the Subsidiaries taken as a whole (other than inventory acquired in the ordinary course of business) or that constitute a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Company or a Subsidiary in the capital stock of its Subsidiariesdate hereof;
(c) investments made with consideration consisting solely of common stock of Company, PROVIDED that, if the value of such common stock exceeds $25,000,000 during the period from the Effective Date through June 30, 2003, or $50,000,000 during any fiscal year of the Company thereafter, such investments may be made so long as (i) no Default shall have occurred and be continuing at the time of any such investment, (ii) the Company shall have delivered to the Agents a certificate of a Financial Officer demonstrating pro forma compliance with the covenant set forth in Section 6.13 and (iii) the Ratings shall be at least BBB- and Baa3, in each case with stable outlook;
(d) investments by the Company and its Subsidiaries in Equity Interests of, and, to the extent permitted by Section 6.01, Guarantees by the Company and its Subsidiaries of Debt of, persons that are direct or indirect Subsidiaries of Company prior to the making of such investments; PROVIDED that (i) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Collateral and Guarantee Agreement to the extent required by this Agreement and (ii) the aggregate amount of investments by Loan Parties in, loans and advances by Loan Parties to, and Guarantees by Loan Parties of Debt of, Subsidiaries that are not Subsidiary Guarantors (other than any such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $15,000,000 at any time outstanding;
(e) loans or advances made by the Company to, and Guarantees by the Company of obligations of, to any Subsidiary, and loans Subsidiary or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company or any other Subsidiary; PROVIDED that (i) any such loans and advances made by a Grantor shall be pledged pursuant to the Collateral and Guarantee Agreement to the extent required by this Agreement and (ii) the amount of such loans and advances made by Subsidiary Guarantors to Subsidiaries that are not Subsidiary Guarantors shall be subject to the limitation set forth in clause (d) above;
(df) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;business; and
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to Acquisition and the Company or any SubsidiaryRecapitalization;
(h) Permitted AcquisitionsRestricted Payments permitted by Section 6.10(a)(iii), (vi) or (vii);
(i) Swap Agreements acquisitions of Equity Interests or assets for consideration with a value not entered into for speculative purposesgreater than (i) $25,000,000 during the period from the Effective Date through June 30, 2003, or (ii) $50,000,000 during any fiscal year of the Company thereafter; PROVIDED that after June 30, 2004, any acquisition of Equity Interests or assets may be completed without regard to such limitation so long as (i) no Default shall have occurred and be continuing at the time of such acquisition, (ii) the Company shall have delivered to the Agents a certificate of a Financial Officer demonstrating pro forma compliance with the covenant set forth in Section 6.13 (but with each applicable ratio reduced by 0.25) and (iii) the Company shall have Ratings of at least BBB- and Baa3, in each case with stable outlook;
(j) Investments in connection with the ownershipother investments, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
which would not be permitted but for this clause (k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (bj), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 10,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07outstanding.
Appears in 2 contracts
Samples: Five Year Revolving Credit and Competitive Advance Facility Agreement (Readers Digest Association Inc), Term Loan Agreement (Readers Digest Association Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationpursuant to consideration received in connection with a Disposition of assets) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliates(collectively, "Investments"), except:
(a) Permitted Investments;
(b) investments by Investments in existence on the Company or a Subsidiary in the capital stock of its SubsidiariesEffective Date;
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans intercompany Investments made in the ordinary course of business to employees by the Borrower or any Subsidiary in the Borrower or any Subsidiary;
(d) warrants received from, and minority equity investments in, customers of the Company Borrower and its Subsidiaries so long as no cash is expended by the Borrower or any of its Subsidiaries to purchase any of the foregoing;
(e) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers of the Borrower and its Subsidiaries;
(f) Investments existing on loans and advances to officers and employees of the Effective Date not otherwise permitted under this AgreementBorrower and its Subsidiaries in the ordinary course of business;
(g) Investments received in connection with funded through the bona fide settlement issuance of any defaulted Indebtedness or other liability owed to common stock of the Company or any SubsidiaryBorrower;
(h) Permitted AcquisitionsInvestments comprised of capital contributions, loans or deferred purchase price (whether in the form of cash, a note or other assets) to any Receivables Subsidiary or Real Estate Subsidiary;
(i) Swap Agreements in addition to Investments otherwise expressly permitted by this Section, Investments by the Borrower or any of its Subsidiaries in an aggregate amount (valued at cost) not entered into to exceed $500,000,000 during the term of this Agreement, provided, that for speculative purposes;the purpose of determining at any time the utilization of such amount by Investments constituting Guarantees, the amount of utilization shall equal the sum of the amount (determined in accordance with the definition of "Guarantee") of then outstanding Guarantees plus the amount actually funded after the Effective Date in connection with Guarantees made pursuant to this paragraph; and
(j) Investments received as consideration in connection with the ownershipany Disposition of property, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of provided that (i) the aggregate value of Investments so received in connection with any such Disposition shall not exceed 25% of the total consideration (or 100% of the total consideration in the case of a Disposition for total consideration of $100,000,000 25,000,000 or less) received in connection therewith and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference Investments shall become Collateral to the Company’s financial statements most recently delivered pursuant to extent required by Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.075.11.
Appears in 2 contracts
Samples: Letter of Credit Issuance and Reimbursement Agreement (Lucent Technologies Inc), External Sharing Debt Agreement (Lucent Technologies Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness Indebtedness or Equity Interests or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesotherwise), except:
(a) Permitted Investments, subject to control agreements in favor of the Administrative Agent for the benefit of the Secured Parties or otherwise subject to a perfected security interest in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) investments by in existence on the Company or a Subsidiary date hereof and described in the capital stock of its SubsidiariesSchedule 6.04;
(c) investments by the Loan Parties and their Subsidiaries in Equity Interests in their respective Subsidiaries, provided that, in each case, (i) the aggregate amount of investments by Loan Parties in Subsidiaries that are not Loan Parties, except investments in existence on the Effective Date, shall not exceed $5,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs), (ii) no such investments into a non-Loan Party may be made while an Event of Default is continuing or would result therefrom, and (iii) if there are any Loans outstanding, the Investment Condition must be satisfied with respect to any such investment at the time any such investment is made;
(d) loans or advances made by the Company to, and Guarantees by the Company of obligations of, (i) any Loan Party or any Subsidiary to (ii) any Loan Party or any Subsidiary, provided that (A) the amount of such loans and advances made by Loan Parties to non-Loan Parties (together, in each case, with outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $15,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs), (B) no such loans or advances may be made by to a non-Loan Party while any Subsidiary toEvent of Default is continuing or would result therefrom, and Guarantees by (C) if there are any Subsidiary of obligations ofLoans outstanding, the Company Investment Condition must be satisfied with respect to any such loans or advances at the time any other Subsidiarysuch loans or advances are made;
(de) 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, in each case, with outstanding intercompany loans permitted under clause (A) to the proviso to Section 6.04(d)) shall not exceed $15,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs), and (ii) if there are any Loans outstanding, the Investment Condition must be satisfied with respect to any such Guarantees by a Loan Party of Indebtedness of Subsidiaries that are not Loan Parties at the time any such Guarantees are made;
(ef) loans or advances made by a Loan Party or loans made Subsidiary to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to employees a maximum of $1,000,000 in the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementaggregate at any one time outstanding;
(g) Investments notes payable, or stock or other securities issued by Account Debtors to a Loan Party with respect to settlement of such 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 a Borrower or consolidates or merges with a Borrower or any of the Subsidiaries (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 bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any SubsidiaryDispositions permitted by Section 6.05;
(hk) investments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”;
(l) Permitted Acquisitions;
(im) Swap Agreements not entered into for speculative purposesany Loan Party or Subsidiary may form or create a new Subsidiary provided that all actions required under Section 5.14 with respect to such formation or creation shall have been taken;
(jn) extensions of trade credit in the ordinary course of business; and
(o) other Investments in connection with (other than Acquisitions) subject to the ownership, development, leasing, acquisition, construction or improvement satisfaction of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07Payment Condition.
Appears in 2 contracts
Samples: Credit Agreement (Cricut, Inc.), Credit Agreement (Cricut, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger merger, amalgamation or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger merger, amalgamation or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments Permitted Acquisitions; provided that, during the Covenant Suspension Period: (i) the aggregate amount of consideration paid by the Company or a Subsidiary in the capital stock any of its Subsidiaries;
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received Subsidiaries in connection with all Permitted Acquisitions shall not exceed an amount equal to $50,000,000 minus the bona fide settlement amount then outstanding in respect of any defaulted Indebtedness investments in joint ventures or other liability owed to the Company minority interests in a business or any Subsidiary;
(h) Permitted Acquisitions;
line of business in reliance on clause (i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 Specified Joint Venture Investment Basket and (ii) 2.75% of Total Assets (determined no Permitted Acquisition shall be permitted unless at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and immediately after giving effect (including giving effect on a pro forma basis) thereto Available Liquidity is greater than or equal to $125,000,000;
(c) investments by the Company and its Subsidiaries existing on the Amendment No. 45 Effective Date in the capital stock of its Subsidiaries;
(d) investments, loans, advances and/or capital contributions made by the Company in or to any Subsidiary and made by any Subsidiary in or to the Company or any other Subsidiary (provided that (1) not more than an aggregate amount equal to (x) during the Covenant Suspension Period, $25,000,000 and (y) following the termination of the Covenant Suspension Period, the greater of $100,000,000150,000,000 and 67.5% of Consolidated Total Assets (determined as of the last day of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or Section 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the financial statements referred to in Section 3.04(a)) at the time of the making of such investments loans, advances and/or capital contributions, in investments, loans, advances and/or capital contributions may be made and remain outstanding, at any time, by Loan Parties to Subsidiaries which are not Loan Parties (or do not become Loan Parties within forty-five (45) days (or such later date as may be agreed upon by the Administrative Agent) after the receipt of such investment, loan, advance and/or capital contribution and which amount shall be determined net of any return on capital, repayment of indebtedness, and any investments, loans and/or capital contributions by Subsidiaries that are not Loan Parties to a Loan Party) (the limitation set forth in this clause (1) being referred to as the “Specified Intercompany Investment Limitation”) and (2) in the event of an investment, loan, advance and/or capital contribution to a Limited Recourse Guarantor, only the amount of recourse (as reasonably determined by the Company at the time of such investment, loan, advance and/or capital contribution and approved by the Administrative Agent in its reasonable credit judgment) with respect to such Limited Recourse Guarantor under the applicable Limited Recourse Guaranty, after giving effect to such investment, loan, advance and/or capital contribution, shall be excluded from this proviso and the remaining balance of such investment, loan, advance and/or capital contribution (less any amount paid, repaid, returned or otherwise distributed in cash by such Limited Recourse Guarantor to the applicable transferor Loan Party in respect of such investment, loan, advance and/or capital contribution, which amount so deducted shall not exceed the original amount of such investment, loan, advance and/or capital contribution) shall only be permissible to the extent of availability under the Specified Intercompany Investment Limitation hereunder and/or the Specified Joint Venture Investment Basket; provided, further, and for the avoidance of doubt, (i) intercompany transfers of intangible assets that are solely effected by bookkeeping entries and that do not otherwise represent an exchange or transfer of assets are not deemed to be investments, loans or advances or capital contributions and are not subject to the Specified Intercompany Investment Limitation hereunder, (ii) investments, loans or advances and/or capital contributions made by a Loan Party to a Subsidiary that is not a Loan Party shall not be subject to the Specified Intercompany Investment Limitation hereunder so long as such Subsidiary that is not a Loan Party transfers such investment, loan, advance and/or capital contribution, immediately upon receipt thereof, to a Loan Party, but subject to clause (2) above, (iii) any investment, loan, advance and/or capital contribution that is made to a Subsidiary that is not a Loan Party and that has reduced the availability under the Specified Intercompany Investment Limitation in clause (1) above shall no Default longer reduce such availability from and after the date that such Subsidiary becomes a Loan Party and (iv) any investment, loan advance and/or capital contribution that is made to a Guarantor that is a Limited Recourse Guarantor and that has reduced availability under clause (2) above shall no longer reduce such availability from and after the date that such Guarantor ceases to be a Limited Recourse Guarantor but remains a Guarantor);
(e) Guarantees permitted by Section 6.01(d);
(f) the Permitted Corporate Reorganization;
(g) investments in joint ventures or Event other minority interests in a business or line of Default has occurred business permitted with respect to the Loan Parties and the Subsidiaries under this Agreement; provided that the aggregate outstanding amount of all such investments in joint ventures and minority interests pursuant to this clause (g) does not exceed (i) during the Covenant Suspension Period, when taken together with the aggregate amount of consideration paid by the Company or any of its Subsidiaries in respect of Permitted Acquisitions during the Covenant Suspension Period, $50,000,000, so long as at the time of and immediately after giving effect (including giving effect on a pro forma basis) to such investment Available Liquidity is continuing greater than or would occur equal to $125,000,000, and (ii) solely to the extent that the Covenant Suspension Period is not in effect, the greater of $75,000,000100,000,000 and 3.55% of Consolidated Total Assets (determined as of the last day of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or Section 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the financial statements referred to in Section 3.04(a)) at the time of the making of such investments in the aggregate (such basket described in the foregoing clauses (i) and (ii), the “Specified Joint Venture Investment Basket”). For the avoidance of doubt, investments in joint ventures or other minority interests that subsequently transition into the status of (and remain) a Subsidiary shall not utilize the Specified Joint Venture Investment Basket and such investments shall instead by governed by Sections 6.04(b) and 6.04(d);
(h) any Section 403-Declaration in relation to a Subsidiary or any residual liability under such declaration arising pursuant to section 2:404(2) of the Dutch Civil Code;
(i) any joint and several liability and any netting or set-off arrangement arising in each case as a result of a fiscal unity (fiscale eenheid) for Dutch corporate income tax or Dutch value added tax purposes of which a Dutch Loan Party is or becomes a member;
(j) the Company’s entry into (including payments of premiums in connection therewith), and the performance of obligations under, Permitted Call Spread Swap Agreements in accordance with their terms;
(k) investments, loans and advances existing on the Amendment No. 45 Effective Date and identified on Schedule 6.04;
(l) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(m) loans or advances to employees, officers or directors of the Company is or any Restricted Subsidiary in compliance the ordinary course of business consistent with past practices in an aggregate amount not in excess of (x) during the Covenant Suspension Period, $5,000,000 and (y) following the termination of the Covenant Suspension Period, $20,000,000, outstanding at any one time with respect to all loans or advances under this clause (m) (without giving effect to the forgiveness of any such loan); and
(n) any other investment, loan or advance (other than acquisitions) so long as the aggregate amount of all such investments, loans and advances at any time outstanding does not exceed (x) during the Covenant Suspension Period, $25,000,000 and (y) following the termination of the Covenant Suspension Period, thethe greater of $75,000,000 and 4% of Consolidated Total Assets (determined as of the last day of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 6.075.01(a) or Section 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the financial statements referred to in Section 3.04(a)) at the time of the making of such investment, loan or advance.
Appears in 2 contracts
Samples: Credit Agreement (CIMPRESS PLC), Credit Agreement (CIMPRESS PLC)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationpursuant to consideration received in connection with a Disposition of assets) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliates(collectively, “Investments”), except:
(a) Permitted Investments;
(b) investments by Investments in existence on the Company or a Subsidiary in the capital stock of its SubsidiariesAmendment Effective Date;
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans intercompany Investments made in the ordinary course of business to employees by the Borrower or any Subsidiary in the Borrower or any Subsidiary;
(d) warrants and minority equity investments in customers of the Company Borrower and its Subsidiaries so long as the Investment to purchase any of the foregoing is not made in cash by the Borrower or any of its Subsidiaries;
(e) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers of the Borrower and its Subsidiaries;
(f) Investments existing on loans and advances to officers and employees of the Effective Date not otherwise permitted under this AgreementBorrower and its Subsidiaries in the ordinary course of business;
(g) Investments received in connection with funded through the bona fide settlement issuance of any defaulted Indebtedness or other liability owed to common stock of the Company or any SubsidiaryBorrower;
(h) Permitted AcquisitionsInvestments comprised of capital contributions, loans or deferred purchase price (whether in the form of cash, a note or other assets) to any Receivables Subsidiary or Real Estate Subsidiary;
(i) Swap Agreements in addition to Investments otherwise expressly permitted by this Section, Investments by the Borrower or any of its Subsidiaries in an aggregate amount (valued at cost) not entered into to exceed the Investment Basket during the term of this Agreement, provided, that (i) for speculative purposes;the purpose of determining at any time the utilization of such amount by Investments constituting Guarantees, the amount of utilization shall equal the sum of the amount (determined in accordance with the definition of “Guarantee”) of then outstanding Guarantees plus the amount actually funded after the Amendment Effective Date in connection with Guarantees made pursuant to this paragraph and (ii) to the extent that the Borrower receives (A) cash proceeds from any related equity issuances within 60 days prior or subsequent to such Investment or (B) cash proceeds from any subsequent sale or Disposition of such Investment, the amount of the Investment Basket deemed to be utilized as of such date shall be reduced by the amount of such cash proceeds; and
(j) Investments received as consideration in connection with the ownershipany Disposition of property, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of provided that (i) the aggregate value of Investments so received in connection with any such Disposition shall not exceed 25% of the total consideration (or 100% of the total consideration in the case of a Disposition for total consideration of $100,000,000 25,000,000 or less) received in connection therewith and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference Investments shall become Collateral to the Company’s financial statements most recently delivered pursuant to extent required by Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.075.11.
Appears in 2 contracts
Samples: External Sharing Debt Agreement (Lucent Technologies Inc), Letter of Credit Issuance and Reimbursement Agreement (Lucent Technologies Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent and the Company will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation amalgamation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationamalgamation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted InvestmentsInvestments to the extent made in accordance with the Company’s current investment policy statement;
(b) investments by the Parent, the Company, any Domestic Subsidiary or any Subsidiary Guarantor in the Parent, the Borrower or any such Subsidiary Guarantor;
(c) additional purchases of or investments by the Parent, the Company or a any Subsidiary in the capital stock of its Subsidiaries;
(c) loans , including Foreign Subsidiaries, joint ventures or advances made by the Company tocapital stock, and Guarantees by the Company assets, obligations or other securities of obligations of, any Subsidiaryor interests in other Persons, and loans or and advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations ofthe Parent, the Company or any other SubsidiaryCredit Party to or in favor of, and guarantees by the Parent, the Company or any Domestic Subsidiary of the obligations of, Foreign Subsidiaries, in an amount in the aggregate at any time outstanding which does not exceed 20% of Consolidated Tangible Assets;
(d) Guarantees constituting Guarantee Obligations or Indebtedness of any Domestic Credit Party permitted by Section 6.017.01 and Guarantees of Indebtedness of Foreign Subsidiaries permitted by Section 7.01(i);
(e) loans and advances to officers and directors of any Credit Party (or employees thereof provided such loans made and advances are approved by an officer of a Credit Party) for travel, entertainment and relocation expenses in the ordinary course of business to employees of the Company and its Subsidiariesin an aggregate principal amount outstanding at any time that shall not exceed $1,000,000;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;Permitted Acquisitions; and
(g) Investments received in connection with the bona fide settlement investments of any defaulted Indebtedness or other liability owed funds intended to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date fund deferred compensation liabilities in an aggregate amount not to exceed $500,000,000 75,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior outstanding, provided that such investments are made pursuant to making such Investment policies approved from time to time by the Board of Directors of the Parent and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event continue at all times to be assets of Default has occurred and is continuing or would occur and (ii) the Parent, the Company is in compliance with Section 6.07or another Credit Party subject to the claims of its general creditors.
Appears in 2 contracts
Samples: Credit Agreement (Abercrombie & Fitch Co /De/), Credit Agreement (Abercrombie & Fitch Co /De/)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Loan Parties will not, and will not permit any of its Subsidiaries Subsidiary to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Wholly Owned Subsidiary prior to such merger or consolidationmerger) any capital stock, Equity Interests in or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or provide other credit support for any Person or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or (each of the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesforegoing, an “Investment” and collectively, “Investments”), except:
(ai) Permitted Investments;
(bii) investments by Investments existing on the Company Effective Date (or in respect of which a Subsidiary in binding commitment to make such investment exists on the capital stock of its SubsidiariesEffective Date) and set forth on Schedule 6.04;
(ciii) loans or advances made Investments (A) by the Company toBorrower or any Subsidiary of the Borrower in the Borrower or any Subsidiary Loan Party (whether made prior to or after the Effective Date), and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made (B) by any Subsidiary to, that is not a Loan Party in Borrower or any Wholly Owned Subsidiary (whether made prior to or after the Effective Date) and Guarantees (C) after the Effective Date by the Borrower or any Subsidiary in any Subsidiary that is not a Loan Party; provided that the aggregate amount of obligations ofsuch Investments pursuant to this clause (C) shall not exceed $20.0 million (less the aggregate amount of Restricted Payments made pursuant to Section 6.07(iv)) at any one time outstanding; and provided, the Company further, that any such Investment held by a Loan Party shall be pledged pursuant to a Pledge Agreement or any other Subsidiarya Non-U.S. Pledge Agreement in accordance with Section 5.11;
(div) Guarantees constituting Indebtedness permitted by Section 6.016.01(a)(iv) or Section 6.01(a)(vi);
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(gv) Investments received in connection with the bona fide bankruptcy or reorganization of, or settlement of any defaulted Indebtedness or other liability owed to delinquent accounts and disputes with, customers and suppliers, in each case in the Company or any Subsidiaryordinary course of business;
(hvi) Permitted Acquisitionsloans and advances to employees of the Borrower or its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) not to exceed $1.0 million in the aggregate at any time outstanding; provided that (x) to the extent such loans or advances are evidenced by promissory notes, such promissory notes shall be endorsed in blank and delivered to the Collateral Agent pursuant to the Pledge Agreement and (y) the Borrower shall and shall cause its Subsidiaries to take all actions and execute all documents reasonably requested by the Collateral Agent to confirm the Collateral Agent’s security interest in such loans and advances and/or promissory notes pursuant to the applicable Security Documents;
(ivii) Swap Agreements not entered into Permitted Acquisitions for speculative purposes;
(j) Investments in connection with aggregate Acquisition Consideration since the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount Effective Date not to exceed the greater $50.0 million (of (i) which not more than $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment 30.0 million may be used to consummate Permitted Acquisitions by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)Subsidiaries that are not Loan Parties);
(lviii) Investments, Investments of the Borrower or any Subsidiary Loan Party not in addition excess of the QRTC Amount outstanding at any time less the aggregate amount of Capital Expenditures made pursuant to Investments permitted under clauses Section 6.14(c);
(ix) loans made by the Borrower or any of the Subsidiary Loan Parties to Subsidiaries that are not Loan Parties; provided that (a) through the proceeds of such loans shall be used either to (jx) fund Capital Expenditures permitted to be made pursuant to Section 6.14(a) or (y) purchase the Equity Interests in a non-wholly owned Subsidiary not owned by the Borrower or any of its Subsidiaries and (b) any such loan shall be pledged pursuant to a Pledge Agreement or a non-U.S. Pledge Agreement in accordance with Section 5.11; and
(x) the Permitted Restructuring. The aggregate amount of an Investment at any one time outstanding for purposes of this Section 6.04 made after shall be deemed to be equal to (A) the Effective Date in an aggregate amount of cash, together with the aggregate fair market value of Property, loaned, advanced, contributed, transferred or otherwise invested that gives rise to such Investment minus (B) the aggregate amount of dividends, distributions or other payments received in cash in respect of such Investment (including by way of a sale or other disposition of such Investment). The amount of an Investment shall not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making event be reduced by reason of any write-off of such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07Investment.
Appears in 2 contracts
Samples: Credit Agreement (Polymer Group Inc), Credit Agreement (Polymer Group Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investmentsinvestments in cash and Cash Equivalents;
(b) investments in existence on the date of this Agreement and described in Schedule 6.04;
(c) investments by the Company or a Subsidiary Borrower and its Subsidiaries in the capital stock of its their respective Subsidiaries; provided, that the aggregate amount of investments (together with the aggregate amount of loans and advances described in Section 6.04(d)), as of any date of determination, made by the Borrower or the other Loan Parties in the capital stock of their respective Subsidiaries who are not Loan Parties does not at any time exceed an amount equal to 50% of the EBITDA for the period of four consecutive fiscal quarters having most recently ended prior to such date of determination and for which financial statements are available (with the amount of any such investments being the original cost of such investment, less all repayments, returns, dividends and distributions, in each case received in cash in respect of such investment and less all liabilities effectively assumed by a person other than any Loan Party or any Subsidiary thereof in connection with the sale of any such investment);
(cd) loans or advances made by the Company to, and Guarantees by Borrower or any of its Subsidiaries to the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company Borrower or any other Subsidiary; provided, that the aggregate amount of loans and advances (together with the aggregate amount of investments described in Section 6.04(c)) made by the Borrower or the other Loan Parties to Subsidiaries who are not Loan Parties that are at any time outstanding does not, as of any date of determination, exceed an amount equal to 50% of the EBITDA for the period of four consecutive fiscal quarters having most recently ended prior to such date of determination and for which financial statements are available;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) Permitted Acquisitions;
(g) loans and advances to employees of the Borrower or loans made any Subsidiaries in the ordinary course of business (including for travel, entertainment and relocation expenses and to employees finance the purchase of Equity Interests of the Company Borrower) in an aggregate amount for the Borrower and its SubsidiariesSubsidiaries not to exceed $10 million at any time outstanding;
(fh) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments investments received in connection with the bona fide bankruptcy or reorganization of any Person or in settlement of obligations of, or disputes with, any defaulted Indebtedness or other liability owed to Person arising in the Company or any Subsidiary;
(h) Permitted Acquisitionsordinary course of business;
(i) Swap Agreements not entered into for speculative purposespermitted by Section 6.06;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate HeadquartersTransfer Pricing Transactions;
(k) Investments investments consisting of extensions of credit in joint ventures the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business;
(l) to the extent constituting investments, performance guarantees of obligations of the Borrower’s Subsidiaries in the ordinary course of business; and
(m) in addition to investments otherwise expressly permitted by this Section 6.04, investments, loans and advances by the Borrower or any of its Subsidiaries in an aggregate amount (valued at cost) not to exceed the greater of (ix) $100,000,000 40 million and (iiy) 2.7520% of Total Assets (determined at EBITDA for the time period of each four consecutive fiscal quarters having most recently ended prior to such investment by reference to the Company’s date of determination and for which financial statements most recently have been delivered pursuant to Section Sections 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b5.01(b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07applicable.
Appears in 2 contracts
Samples: Credit Agreement (ExlService Holdings, Inc.), Credit Agreement (ExlService Holdings, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will notform any Subsidiary after the Closing Date, and will not permit any of its Subsidiaries to, or purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of otherwise), or make any licensee under a trademark license to such licensee from the Company or any of its AffiliatesAcquisition, except:
(a) Permitted Investments;
(bi) investments by the Company Borrower or a any Subsidiary in the Equity Interests of any Guarantor, (ii) investments by Parent in the capital stock of Borrower existing on the Closing Date, and (iii) intercompany loans and advances by and between the Borrower and its SubsidiariesSubsidiaries that are permitted in accordance with Section 7.01(e);
(c) loans or advances of salary made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company Borrower or any other SubsidiaryLoan Party to any officer or employee of the Borrower or such Subsidiary on an arm’s-length basis in the ordinary course of business;
(d) Guarantees constituting Indebtedness permitted travel and entertainment advances and other loans to officers and employees for customary business purposes in connection with their employment by Section 6.01the Borrower or any other Loan Party;
(e) advances investments of the Borrower and all Subsidiaries (other than those described under any other clause of this Section 7.04) in an amount not to exceed $500,000 in the aggregate at any one time outstanding in Persons that are not Affiliates of any Loan Party;
(f) Acquisitions by the Borrower, provided that (i) no Default shall have then occurred and be continuing or loans made would result therefrom, (ii) such Acquisition is initiated and completed on a “friendly” basis, (iii) as of the date of consummation of such Acquisition, the aggregate Trailing Revenue of (A) the Person(s) or assets to be acquired by the Borrower in connection with such Acquisition and (B) any Person(s) or assets acquired by the Borrower in connection with any other Acquisitions occurring within 12 months prior to such date, shall not exceed twenty-five percent (25%) of the Trailing Revenue for the Borrower immediately prior to such Acquisition, (iv) in any rolling 12 month period, the purchase price for all such Acquisitions, including the contemplated Acquisition, shall not exceed, in the aggregate, $30,000,000, (v) after giving pro forma effect to such Acquisition, the sum of Borrower’s (A) cash, (B) cash equivalents and (C) the aggregate undrawn amount of the Aggregate Revolving Commitments shall be not less than $10,000,000, and (vi) at least five Business Days prior to the consummation of each Acquisition, the Borrower shall have delivered a certificate of an Authorized Representative certifying compliance with the foregoing conditions (and attaching reasonably detailed calculations);
(g) extensions of trade credit in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiarybusiness;
(h) Permitted Acquisitionsany notes, securities or other instruments received as part of the settlement of litigation or in satisfaction of extensions of credit to any Person otherwise permitted hereunder pursuant to the reorganization, bankruptcy or liquidation of such Person;
(i) Swap Agreements not entered into for speculative purposes;investments set forth on Schedule 7.04; and
(j) Investments investments in connection with the ownership, development, leasing, acquisition, construction or improvement form of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment Swap Agreements permitted by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.077.07.
Appears in 2 contracts
Samples: Credit Agreement (Natural Grocers by Vitamin Cottage, Inc.), Credit Agreement (Natural Grocers by Vitamin Cottage, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Company or a Subsidiary any of its Subsidiaries in the capital stock of its their respective Subsidiaries;
(c) loans or advances made by the Company to, to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, to the Company or any other Subsidiary and Guarantees promissory notes or bonds issued by any Subsidiary of obligations of, to the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by subject to Section 6.01, Guarantees by the Company of Indebtedness of any Subsidiary or by any Subsidiary of Indebtedness of the Company or any other Subsidiary;
(e) advances debt securities, promissory notes and similar instruments received as non-cash consideration in connection with sales or loans made dispositions of assets;
(f) investments received as a result of the compromise of claims against delinquent franchisees or account debtors in the ordinary course of business to employees or the bankruptcy or reorganization of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementsuch franchisee or account debtors;
(g) Investments received Guarantees made by the Company and the Subsidiaries of obligations of franchisees and other third parties (other than the Company, the Subsidiaries and any joint ventures of the Company and the Subsidiaries) incurred in connection with the bona fide settlement ordinary course of any defaulted Indebtedness or other liability owed to business;
(h) investments by the Company or any Subsidiaryof its Subsidiaries to the extent the consideration for such investments consists solely of capital stock of the Company;
(hi) purchases by the Company or any of its Subsidiaries of any restaurant from a franchisee or licensee operating under any license granted by the Company or any of its Subsidiaries or any interest in a joint venture of the Company or any of its Subsidiaries that engages in businesses that the Company and its Subsidiaries would be permitted to engage in, in each case for consideration consisting of cash or common stock of the Company; provided that after giving effect to such purchase, percentage ownership of System Units by the Company and its Subsidiaries does not exceed 37.5% of the total System Units;
(j) Permitted Acquisitions;
(ik) Swap Guarantees made by the Company or any Guarantor of Hedging Agreements not entered into for speculative purposes;
(j) Investments in connection by any Subsidiary with the ownership, development, leasing, acquisition, construction any Lender or improvement any Affiliate of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))a Lender;
(l) Investments, in addition Guarantees made by the Company and the Subsidiaries of lease payments related to Investments permitted under clauses (a) through (j) sales of this Section 6.04 made after restaurants by the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or PersonsCompany and the Subsidiaries;
(m) Investments so long as prior investments by Subsidiaries in, and Guarantees by Subsidiaries of Indebtedness of, joint ventures that are formed to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) engage in businesses that the Company is and its Subsidiaries would be permitted to engage in;
(n) investments which are made for the purpose of hedging investment risks associated with investment decisions made by executives under the Company’s deferred compensation plan for executives; and
(o) other investments and Guarantees not otherwise permitted by the foregoing clauses of this Section in compliance with Section 6.07an aggregate amount at any time outstanding not to exceed US$300,000,000.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Yum Brands Inc), Credit Agreement (Yum Brands Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and nor will not it permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesotherwise), except:
(a) Permitted Investments;
(b) investments by in existence on the Company or a Subsidiary date hereof and described in the capital stock of its SubsidiariesSchedule 6.04;
(c) loans or advances made by the Company toBorrower to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and Guarantees by similar purposes up to a maximum of $500,000 to any employee and up to a maximum of $2,000,000 in the Company of obligations of, aggregate at any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiaryone time outstanding;
(d) Guarantees constituting Indebtedness investments in the form of Swap Agreements permitted by Section 6.016.07;
(e) 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;
(f) investments received in connection with the disposition of assets permitted by Section 6.05;
(g) investments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”;
(h) Permitted Intercompany Advances;
(i) advances made in connection with purchases of goods or loans services in the ordinary course of business consistent with past practices;
(j) investments, Equity Interests and other securities received in settlement of amounts due to Borrower or any of its Subsidiaries effected in the ordinary course of business or owing to Borrower or any of its Subsidiaries as a result of bankruptcy or insolvency proceedings involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of Borrower or its Subsidiaries;
(k) deposits of cash made in the ordinary course of business to employees secure performance of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))operating leases;
(l) Investments, investments in addition to Investments permitted under clauses (a) through (j) the form of this Section 6.04 capital contributions and the acquisition of Equity Interests made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding by Borrower in any Person or Personswholly-owned Subsidiary;
(m) Investments so long as prior any other loans, advances and investments not otherwise permitted hereunder, provided that such loans, advances and investments made pursuant to making such Investment this clause shall not exceed an aggregate amount of $5,000,000 at any time outstanding;
(n) the acquisition or issuance of Equity Interests for purposes of funding or contributing to retirement, pension and after giving effect other benefit plans maintained by the Borrower (including giving effect on a pro forma basisthe Borrower’s Executive Supplemental Retirement Plan, Cash Balance Executive Supplemental Retirement Plan and Special Deferral Election Plan); and
(o) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07Permitted Acquisitions.
Appears in 2 contracts
Samples: Credit Agreement (SJW Group), Credit Agreement (SJW Group)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) (i) Permitted Investments and (ii) so long as the aggregate outstanding amount thereof does not exceed $40,000,000 at any time, Permitted Two-Year Investments;
(b) loans, advances or investments by existing on the Company or a Subsidiary in the capital stock of its SubsidiariesEffective Date and listed on Schedule 6.04;
(c) loans loans, advances or advances capital contributions made by the Company to, in or to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, in or to the Company or any other Subsidiary, provided that, unless constituting Permitted Foreign Reorganization Transfers, not more than $30,000,000 in loans, advances or capital contributions that are made by the Company or any Subsidiary Loan Party to a Person which is not a Subsidiary Loan Party may be outstanding at any time;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(f) Permitted Acquisitions;
(g) Guarantees by the Company and any Subsidiary of leases entered into in the ordinary course of business by any Subsidiary as lessee;
(h) extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;
(i) investments in payroll, travel, relocation and similar advances or loans to employees and prospective employees to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business to employees of the Company and its Subsidiariesbusiness;
(fj) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments investments in or acquisitions of stock, obligations or securities received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed debts created in the ordinary course of business and owing to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments Subsidiary or in connection with the ownership, development, leasing, acquisition, construction or improvement satisfaction of the Corporate Headquartersjudgments;
(k) Investments investments in equity securities and rights to acquire equity securities acquired as part of fees charged to clients or otherwise in connection with the performance of services by the Company and its Subsidiaries in the ordinary course of business;
(l) warrants, options and Equity Interests received by the Company or any Subsidiary as full or partial compensation for services rendered by the Company or any Subsidiary, all in the ordinary course of business consistent with past practice;
(m) deposit accounts maintained in the ordinary course of business and Cash Pooling Arrangements;
(n) subject to the provisions of this Section 6.04(n), the Company may make investments in joint ventures in an aggregate amount not to exceed the greater of ventures, so long as (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such proposed investment by reference no Event of Default has then occurred or is continuing or would arise after giving effect thereto, (ii) after giving pro forma effect to any such investment, the Company would be in compliance with Section 6.11, (iii) at any time when the Leverage Ratio is greater than or equal to 2.50 to 1.00 (both immediately before and immediately after giving effect to such investment) no such investments shall be permitted pursuant to this Section 6.04(n), (iv) at any time when the Leverage Ratio is greater than or equal to 1.75 to 1.00 but less than 2.50 to 1.00 (both immediately before and immediately after giving effect to such investment) the aggregate amount of cash consideration for any investment made pursuant to this Section 6.04(n), when added to the Company’s financial statements most recently delivered aggregate amount of such cash consideration for all other investments made pursuant to this Section 5.01(a6.04(n) or in the same calendar year as the calendar year in which such investment occurs, shall not exceed $50,000,000, (bv) orat any time when the Leverage Ratio is less than 1.75 to 1.00 (both immediately before and immediately after giving effect to such investment) the aggregate amount of cash consideration for any investment made pursuant to this Section 6.04(n), if prior when added to the date aggregate amount of the delivery of the first financial statements to be delivered such cash consideration for all other investments made pursuant to this Section 5.01(a6.04(n) or in the same calendar year as the calendar year in which such investment occurs, shall not exceed $100,000,000 and (b), the most recent financial statements referred vi) Availability shall not be less than $25,000,000 after giving effect to in Section 3.04(a));any such investment; and
(lo) Investments, in addition to Investments investments under (i) Swap Agreements permitted under clauses Section 6.05, and (aii) through Permitted Bond Hedge Transactions and Permitted Warrant Transactions entered into in connection with Permitted Convertible Indebtedness and the performance of its obligations thereunder; and
(jp) of this Section 6.04 made after other investments by the Effective Date Company in an aggregate amount not to exceed exceeding $500,000,000 15,000,000 at any time outstanding outstanding. For purposes of determining compliance with this section, the amount of any investment at any time shall be the amount actually invested (measured at the time made), without adjustment for subsequent increases or decreases in the value of such investment, less any Person or Persons;
(m) Investments so long as prior returns to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is or Subsidiary, as applicable, in compliance with Section 6.07respect of such investment; provided that the aggregate amount of such returns shall not exceed the original amount of such investment.
Appears in 2 contracts
Samples: Credit Agreement (Heidrick & Struggles International Inc), Credit Agreement (Heidrick & Struggles International Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly Loan Party and a wholly-owned Subsidiary prior to such merger or consolidationmerger) any capital stockEquity Interests in or of, or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesotherwise), except:
(a) Permitted InvestmentsInvestments comprised of cash on deposit with Chase (or on deposit with other banks to the extent otherwise permitted by Section 5.11) and, in each case, subject to control agreements in favor of the Administrative Agent for the benefit of the Secured Parties if requested by the Administrative Agent (other than, with respect to Deposit Accounts with other banks, such Deposit Accounts so long as the aggregate funds on deposit in all such Deposit Accounts does not exceed $250,000 at any time) or otherwise subject to a perfected security interest in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) investments by in existence on the Company or a Subsidiary date hereof and described in the capital stock of its SubsidiariesSchedule 6.04;
(c) investments by Holdings and Manager in the Borrower, by the Manager in Potbelly Franchising, and by the Borrower in Equity Interests of its Subsidiaries, provided that (i) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Security Agreement and (ii) the aggregate amount of investments made or incurred after December 31, 2019 (including any outstanding intercompany loans and outstanding Guarantees) by Loan Parties in Subsidiaries (including any Permitted J/V’s) that are not wholly-owned directly or indirectly by Borrower shall not exceed $2,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(d) loans or advances made by the Company to, Borrower to any wholly-owned Subsidiary that is a Loan Party and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company Borrower or any other Subsidiarywholly-owned Subsidiary that is a Loan Party; provided that any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Security Agreement;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) loans or advances or loans made by a Loan Party to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to employees a maximum of $100,000 in the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementaggregate at any one time outstanding;
(g) Investments subject to Sections 4.2(a) and 4.4 of the Security Agreement, notes payable, or stock or other securities issued by any Person obligated on an account receivable to the Borrower pursuant to negotiated agreements with respect to settlement of such account receivable in the ordinary course of business, consistent with past practices;
(h) investments in newly formed Subsidiaries that become Loan Guarantors;
(i) investments in the form of Swap Agreements permitted by Section 6.07;
(j) 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 of its Subsidiaries so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(k) investments received in connection with the bona fide settlement dispositions of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment assets permitted by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))6.05;
(l) Investmentsinvestments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, account debtors, customers and suppliers, in addition to Investments permitted under clauses (a) through (j) each case in the ordinary course of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Personsbusiness;
(m) Investments so long as prior to making such Investment and after giving effect [intentionally omitted];
(including giving effect on a pro forma basisn) thereto investments constituting deposits described in clauses (ic) no Default or Event of Default has occurred and is continuing or would occur and (iid) of the Company is in compliance with Section 6.07definition of the term “Permitted Encumbrances”; and
(o) [intentionally omitted]. Notwithstanding the foregoing, the aggregate amount of all Permitted Investments of all non-wholly owned Subsidiaries of the Loan Parties and all Permitted J/Vs shall not exceed $2,500,000 at any time.
Appears in 2 contracts
Samples: Credit Agreement (Potbelly Corp), Credit Agreement (Potbelly Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Parent will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, (i) purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences evidence of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or (ii) purchase or otherwise acquire (in one transaction or a series of transactions) substantially all the assets of any Person or any assets of any other Person constituting a business unit or the unit, division, product line (including rights in respect of any licensee under drug or other pharmaceutical product) or line of business of such Person, or (iii) acquire an exclusive long-term license of rights to a trademark license to such licensee from the Company drug or other product line of any of its AffiliatesPerson (each, an “Investment”) except:
(a) cash and Permitted Investments;
(b) investments by the Company or a Subsidiary in the capital stock of its SubsidiariesPermitted Acquisitions;
(c) loans Investments by Parent and its Restricted Subsidiaries existing on the Effective Date and set forth on Schedule 6.04 and any modification, replacement, renewal or advances made by extension thereof to the Company to, and Guarantees by the Company of obligations of, extent not involving any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiaryadditional Investment;
(d) Investments made by Parent in or to any Restricted Subsidiary and made by any Restricted Subsidiary in or to Parent or any other Restricted Subsidiary and Guarantees by Parent or any Restricted Subsidiary of obligations of any other Restricted Subsidiary, provided that the amount of any Investment by a Loan Party to a Restricted Subsidiary that is not a Loan Party or constituting a Guarantee of obligations of any Restricted Subsidiary that is not a Loan Party shall not exceed, together with the aggregate amount of all other Investments pursuant to this proviso, the greater of (x) $300,000,000 and (y) 40.0% of Consolidated EBITDA as of the end of the Reference Period at any time outstanding;
(e) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) Investments made as a result of the receipt of non-cash consideration from a Disposition, of any asset in compliance with Section 6.03;
(h) Investments in the form of Swap Agreements permitted by Section 6.05;
(i) payroll, travel and similar advances to directors, officers and employees of Parent or loans any Restricted Subsidiary that are made in the ordinary course of business;
(j) extensions of trade credit in the ordinary course of business;
(k) Investments to the extent the consideration paid therefor consists of Equity Interests (other than Disqualified Equity Interests) of Parent;
(l) Investments of any Person in existence at the time such Person becomes a Restricted Subsidiary; provided such Investment was not made in connection with or anticipation of such Person becoming a Restricted Subsidiary and any modification, replacement, renewal or extension thereof;
(m) licenses, sublicenses or transfers of rights with respect to one or more products or technologies under development to joint ventures with third parties or to other entities where Parent or a Restricted Subsidiary retains rights to acquire such joint ventures or other entities or otherwise repurchase such products or technologies;
(n) any customary upfront milestone, marketing or other funding payment in the ordinary course of business to employees of another Person in connection with obtaining a right to receive royalty or other payments in the Company and its Subsidiariesfuture;
(fo) [reserved];
(p) exclusive licenses from a Foreign Subsidiary to Parent or a Domestic Subsidiary of rights to a drug or other pharmaceutical products, diagnostics, delivery technologies, medical devices or biotechnology businesses acquired by such Foreign Subsidiary in an acquisition permitted by Section 6.03;
(q) Investments existing in joint ventures and acquisitions of Equity Interests that would constitute Permitted Acquisitions but for the fact that Persons in which such Equity Interests are acquired do not become wholly owned Subsidiaries of Parent; provided that the sum of the aggregate amount of such Investments, plus the aggregate consideration paid in all such acquisitions, made under this clause (q) shall not exceed the greater of (x) $300,000,000 and (y) 40.0% of Consolidated EBITDA as of the end of the Reference Period, in each case, at any time outstanding. For purposes of this clause (q), the aggregate consideration payable for any Investment shall be the cash amount (and the fair market value of any non-cash consideration, as determined in good faith by Parent) paid on or prior to the Effective Date consummation of such Investment and, except in the case of Milestone Payments, shall not otherwise include any purchase price adjustment, royalty, earnout, contingent payment or any other deferred payment of a similar nature that may be payable in connection therewith;
(r) any Investment made by any Restricted Subsidiary that is not a Loan Party to the extent that such Investment is financed with the proceeds received by such Restricted Subsidiary from an Investment in such Restricted Subsidiary permitted under this Agreement;
(gs) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary[Reserved];
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(jt) Investments consisting of Xxxxx made in connection accordance with Section 6.02; (u) loans or advances to directors and employees of Parent or any Restricted Subsidiary made in the ordinary course of business; provided that the aggregate outstanding amount of such loans and advances, when aggregated with the ownershipGuarantees then outstanding under Section 6.01(l), development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount at any time shall not to exceed the greater of (ix) $100,000,000 and 30,000,000 (iiy) 2.755.0% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date Consolidated EBITDA as of the delivery end of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))Reference Period;
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07.
Appears in 2 contracts
Samples: Credit Agreement (Endo, Inc.), Credit Agreement (Endo, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Parent and Borrower will not, and will not permit any of its the other Subsidiaries (other than a Receivables Subsidiary) to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) cash and Permitted Investments;
(b) investments by existing on the Company or a Subsidiary Restatement Effective Date and set forth on Schedule 6.04A plus (i) any additional investments in the capital stock Persons identified on such Schedule that, as of its Subsidiariesthe Restatement Effective Date, are required by contract or law to be made after the Restatement Effective Date and (ii) other investments that may be required to be made in such Persons after the Restatement Effective Date either by contract or law; provided that the aggregate amount of investments permitted by clauses (i) and (ii) shall not exceed $10,000,000;
(c) investments by the Parent, the Borrower and the other Subsidiaries in Equity Interests in their respective Subsidiaries, and by any Foreign Subsidiary in Equity Interests in any other Foreign Subsidiary; provided that (i) the Subsidiary in which such investment is made is a Subsidiary before such investment is made, or such investment is made in connection with the formation of such Subsidiary and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees (other than Excluded Guarantees) by Loan Parties of Indebtedness and other obligations of, Subsidiaries that are not Loan Parties (excluding, without duplication, all such investments, loans or advances existing on the Restatement Effective Date) shall not exceed $100,000,000 at any time outstanding (disregarding any write-down or write-off of any such loan, advance or other investment);
(d) loans or advances made by the Company to, Parent to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, to the Parent or any other Subsidiary; provided that the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c) above;
(e) Guarantees by the Parent of obligations of any Subsidiary and Guarantees by any Subsidiary of obligations of, of the Company Parent or any other Subsidiary; provided that (i) a Subsidiary that is not a Loan Party shall not Guarantee any obligations of any Loan Party and (ii) the aggregate amount of Indebtedness and other obligations of Subsidiaries that are not Loan Parties that is guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c) above;
(df) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) loans and advances or loans made to employees in the ordinary course of business to employees of the Company Parent and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date Subsidiaries as presently conducted in an aggregate amount not to exceed $500,000,000 10,000,000 at any time outstanding (disregarding any write-down or write-off thereof):
(g) Permitted Acquisitions;
(h) investments received in any Person connection with the bankruptcy or Personsreorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(i) investments described on Schedule 6.04B;
(j) investments, Guarantees, loans and advances made amongst and between Foreign Subsidiaries;
(k) promissory notes and other non-cash consideration received in connection with dispositions of assets;
(l) investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices; and
(m) Investments so long as prior to making other investments, loans, advances, acquisitions and Guarantees; provided that (i) at the time any such Investment investment, loan, advance, acquisition or Guarantee, is made and immediately after giving effect (including giving effect on a pro forma basis) thereto (i) thereto, no Default or Event of Default has shall have occurred and is be continuing or would occur and (ii) the Company is in compliance with Section 6.07aggregate amount of all such investments, loans, advances, acquisitions and Guarantees outstanding at any time (disregarding any write-down or write-off thereof) shall not exceed $20,000,000.
Appears in 2 contracts
Samples: Credit Agreement (American Axle & Manufacturing Holdings Inc), Credit Agreement (American Axle & Manufacturing Holdings Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliates(“Investments”), except:
(a) cash and Permitted Investments;
(b) investments by Investments existing on the Company date hereof and any modification, replacement, renewal, reinvestment or a Subsidiary in the capital stock of its Subsidiariesextension thereof;
(c) loans or advances or other Investments made by the Company to(i) any Loan Party to any other Loan Party, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made (ii) by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, that is not a Loan Party to the Company Borrower or any other SubsidiarySubsidiary and (iii) by any Loan Party to a Subsidiary that is not a Loan Party in an aggregate amount outstanding not to exceed $100,000,000 or to the extent constituting Guarantees of Cash Management Obligations under the Guaranty;
(d) Guarantees constituting Indebtedness permitted by Section 6.01Investments consisting of intercompany cash balances among the Borrower and its Subsidiaries in connection with liquidity management in the ordinary course of business;
(e) loans or advances or loans made in the ordinary course of business to officers, directors and employees of the Company Borrower or the Subsidiaries (i) for reasonable and its Subsidiariescustomary business-related travel, entertainment, relocation and analogous ordinary business purposes, (ii) in connection with such Person’s purchase of equity interests of the Borrower and the Subsidiaries and (iii) for purposes not described in the foregoing clauses (i) and (ii), to the extent permitted by law, in an aggregate principal amount outstanding not to exceed $5,000,000;
(f) Investments existing on in Swap Agreements; provided that Investments by any Loan Party that constitute Guarantees of obligations under Designated Swap Agreements shall only be permitted to the Effective Date not otherwise extent permitted under this Agreementpursuant to clause (b) or (c)(iii) above;
(g) Investments received held by a Subsidiary acquired after the date hereof or of a corporation merged or consolidated with a Subsidiary in accordance with Section 6.02 after the date hereof to the extent that such investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the bona fide settlement date of any defaulted Indebtedness such acquisition, merger or other liability owed to the Company or any Subsidiaryconsolidation;
(h) Permitted Acquisitions;; provided that, any Permitted Acquisition by any Loan Party of assets located outside of the United States (or any Investment by a Loan Party in a subsidiary that is not a Guarantor for the purpose of consummating a Permitted Acquisition) shall only be permitted if the Investment in such Permitted Acquisition is otherwise permitted pursuant to clause (i) below; and
(i) Swap Agreements Permitted Acquisitions not entered into for speculative purposes;
permitted pursuant to clause (jh) above and other Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not exceed 15% of the Consolidated Net Tangible Assets of the Borrower as of such date, net of any return representing return of capital or repayment of Indebtedness in respect of any such investment made pursuant to exceed the greater of this clause (i) $100,000,000 and (ii) 2.75% of Total Assets (determined valued at the time of each such investment by reference the making thereof. Notwithstanding anything to herein to the Company’s contrary, in the event that (i) Consolidated Total Debt of the Borrower as of the last day of any fiscal quarter for which financial statements most recently have been delivered to the Administrative Agent pursuant to Section 5.01(a) or clause (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(aa) or (b), the most recent financial statements referred as applicable, of Section 5.01 to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) Consolidated EBITDA of the Company Borrower for the last four fiscal quarters ending on the last day of such fiscal quarter is less than 3.25:1, then the covenant set forth in compliance with this Section 6.076.03 shall cease to be of any further force and effect.
Appears in 2 contracts
Samples: Credit Agreement (Dr Pepper Snapple Group, Inc.), 364 Day Bridge Credit Agreement (Dr Pepper Snapple Group, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrowers will not, and will not permit any of its their Subsidiaries to, to (i) purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, (ii) make or permit to exist any loans or advances to, (iii) Guarantee any obligations of, or (iv) make or permit to exist any investment or any other interest in, or (v) enter into any joint venture with, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Company or a Subsidiary Loan Parties existing on the date hereof in the capital stock stock, if applicable, of its Subsidiariestheir Subsidiaries and disclosed on Schedule 3.01;
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(d) investments or advances by (i) any Loan Party in or to the US Borrower or any US Guarantor, or (ii) EUR Borrower or any other EUR Obligor in or to EUR Borrower or any other EUR Obligor, in each such case only to the extent that the incurrence of the Indebtedness from any such advance or loan is permitted under Section 6.01; provided that if the aggregate principal amount of all Indebtedness owing from US Obligors to EUR Obligors equals or exceeds $500,000, upon the Administrative Agent’s reasonable request, the EUR Borrower shall cause the EUR Obligor(s) extending such Indebtedness to execute one or more subordination agreements pursuant to which such EUR Obligor(s) shall subordinate its rights in such Indebtedness to the Obligations, such subordination agreement(s) to be satisfactory to the Administrative Agent in form and substance;
(e) loans and advances or loans to directors, officers and employees of Borrowers and their Subsidiaries made in the ordinary course of business consistent with past practice in an aggregate principal amount not to employees of the Company and its Subsidiariesexceed $300,000 at any time outstanding;
(f) Investments existing on consisting of endorsements for collection or deposit in the Effective Date not otherwise permitted under this Agreement;ordinary course of business and consistent with past practice; and
(g) Investments received in connection Acquisitions by any Loan Party with the bona fide settlement purchase price for which any such acquisition is made is not in excess of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto 5,000,000.00; provided that (i) no Default or Event of Default has shall have then occurred and is be continuing or would occur and result therefrom, (ii) such Acquisition is initiated and completed on a “friendly” basis, (iii) after giving effect to any such Acquisition on a pro forma basis as if such Acquisition were completed on the Company is first day of the most recent period of four consecutive fiscal quarters ending on or immediately prior to the date of such Acquisition, the Borrowers would have been and will be in compliance with Section 6.076.14, (iv) at least two Business Days prior to the consummation of each Acquisition, the relevant Loan Party shall have delivered a certificate of an Authorized Representative of the relevant Loan Party certifying compliance with the foregoing conditions (and attaching reasonably detailed calculations if applicable), (v) such Acquisition shall be within the Borrowers’ lines of business, and (vi) any subsidiary acquired in connection with such Acquisition shall comply with Section 5.09.
Appears in 2 contracts
Samples: Credit Agreement (Allied Motion Technologies Inc), Credit Agreement (Allied Motion Technologies Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with with, or as a Division Successor pursuant to the Division of, any Person that was not a wholly owned Subsidiary prior to such merger or consolidationconsolidation or Division) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or (each of the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesforegoing, an “Investment”), except:
(a) Permitted Investments;
(b) investments Any Investments existing on the Restatement Effective Date and set forth in Schedule 6.04;
(c) Permitted Acquisitions;
(d) Investments by the Company or a Subsidiary Borrower and its Subsidiaries existing on the date hereof in the capital stock of its Subsidiaries;
(ce) loans or advances Investments made by the Company to, Borrower in or to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, in or to the Company Borrower or any other Subsidiary;
(df) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with acquired by reason of the bona fide settlement exercise of any defaulted Indebtedness customary creditor’s rights upon default or other liability owed pursuant to the Company bankruptcy, insolvency or reorganization of an account debtor of the Borrower or any Subsidiary;
(h) Permitted AcquisitionsInvestments by the Borrower or any Subsidiary pursuant to any Swap Agreements to the extent permitted under Section 6.05;
(i) Swap Agreements not entered into for speculative purposesInvestments arising out of extensions of trade credit or advances to third parties in the ordinary course of business;
(j) Investments under any Specified Equity Units (including, for the avoidance of doubt, the purchase of treasury or similar securities in connection with the ownership, development, leasing, acquisition, construction or improvement remarketing of any Equity Interest forming part of any Specified Equity Units as contemplated by the second sentence of the Corporate Headquarters;definition of “Specified Equity Units”); provided that any cash consideration paid by the Borrower or any Subsidiary in respect of any such Investments shall be subject to the restrictions under clause (k) below and Section 6.07(i); and
(k) additional Investments not otherwise permitted hereunder, provided that (x) immediately prior to each such Investment no Default or Event of Default is or would be in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 existence and (iiy) 2.75% of Total Assets (determined at the time of after giving effect to each such investment by reference to Investment the Company’s Borrower shall be in compliance on a pro forma basis with the financial covenant contained in Section 6.11(a) recalculated as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements were required to be delivered pursuant to Section 5.01(a) 5.01, as if such transaction or (b)series of transactions had occurred on the first day of the relevant period for testing such compliance, and, to the most recent financial statements referred extent any such Investment have value greater than or equal to in Section 3.04(a));
(l) Investments, in addition $250,000,000 the Borrower shall have delivered to Investments permitted under clauses (a) through (j) the Administrative Agent for distribution to each of the Lenders a certificate of a Financial Officer evidencing the continued compliance with the terms and conditions of this Section 6.04 made after Agreement and the Effective Date other Loan Documents in an aggregate amount not form and substance reasonably acceptable to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Ugi Corp /Pa/), Credit Agreement (Ugi Corp /Pa/)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will notAbsent the written consent of the Lender, and which will not permit any of its Subsidiaries tobe unreasonably withheld or delayed, the Borrower will not purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary of Borrower prior to such merger or consolidationmerger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, in each case other than financing extended to customers in the ordinary course of business, 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, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investmentsinvestments existing on the date hereof and set forth on Schedule 6.04;
(b) investments by the Company or a Subsidiary in the capital stock of its SubsidiariesPermitted Investments;
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiarypermitted under Section 6.01(a);
(d) loans or advances by the Borrower or any of its Subsidiaries to their respective employees in the ordinary course of business, not to exceed $500,000.00 in the aggregate for Borrower and its Subsidiaries at any one time outstanding;
(e) Accounts receivable owned by the Borrower or any of its Subsidiaries, if created in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(f) Guarantees constituting Indebtedness permitted by Section 6.01;
(eg) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent Accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiarybusiness;
(h) Permitted Acquisitions;investments or other interests acquired in compliance with Section 6.03; and
(i) Swap Agreements not entered into for speculative purposes;
investments or loans by Borrower in or to any Subsidiary (jor all Subsidiaries in the aggregate) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate principal amount not to exceed $500,000,000 1,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Fuel Tech, Inc.), Credit Agreement (Fuel Tech, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Credit Party will, nor will not, and will not it permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Credit Party and a Wholly-Owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesotherwise), except:
(ai) Permitted Investments, subject to control agreements (with respect to Credit Parties) in favor of the Administrative Agent for the benefit of the Secured Creditors to the extent required by the Guaranty and Collateral Agreement;
(bii) investments (w) constituting extensions of credit by Target to Holdings or Mergersub with respect to any unpaid amount relating to Top-Off Purchases, (x) by the Company or a Subsidiary Credit Parties and their Subsidiaries (excluding Target and its Subsidiaries) existing on the date hereof in the capital stock or other Equity Interests of their respective Subsidiaries and Excluded Subsidiaries, (y) by Target and its SubsidiariesSubsidiaries existing on the Exchange Closing Date and (z) constituting the acquisition of Equity Interests in Target pursuant to the Transaction;
(ciii) investments, loans or advances made by a Credit Party to any other Credit Party (other than Holdings) and by any Subsidiary that is not a Subsidiary Guarantor to any other Subsidiary that is not a Subsidiary Guarantor;
(iv) Guarantees permitted by Section 11.01 (excluding clauses (xxii) and (xxiii) thereof);
(v) investments, loans and advances in existence on the Company todate of this Agreement and described in Schedule 11.04 and any extensions or renewals thereof which do not increase the amount thereof or conversions of any such loans or advances to equity investments;
(vi) loans, advances or other extensions of credit made by a Credit Party or any Subsidiary to its employees, officers and Guarantees directors in the ordinary course of business for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $10,000,000 in the aggregate at any one time outstanding;
(vii) notes payable, or stock or other securities issued by Account Debtors to a Credit Party or any Subsidiary pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in the Company ordinary course of obligations ofbusiness;
(viii) Guarantees, investments, loans and advances not otherwise permitted under this Section 11.04 (including (a) Guarantees, investments, loans or advances made by or to or on behalf of any SubsidiaryCredit Party to or by or on behalf of any Subsidiary which is not a Subsidiary Guarantor, and (b) Guarantees, investments, loans or advances made by any Subsidiary to, and Guarantees by Credit Party or any Subsidiary which is not a Subsidiary Guarantor to or on behalf of obligations ofany Excluded Subsidiary, the Company or (c) investments in any other Subsidiary;
Joint Venture and minority interests and (d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans investments made in order to consummate Acquisitions (other than the ordinary course Terra Acquisition)); provided that (1) no Event of Default shall have occurred and be continuing or would result therefrom, (2) in the case of any Acquisition, (A) such Acquisition shall only comprise a business to employees or those assets of a business, of the Company type generally conducted by the Borrower and its Subsidiaries;
(f) Investments existing on Subsidiaries as of the Effective Date not otherwise permitted under this Agreement;
or a business reasonably related thereto or a reasonable extension or expansion thereof and (gB) Investments received in connection with such Acquisition shall be consensual and shall have been approved by the bona fide settlement board of any defaulted Indebtedness directors or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement equivalent governing body of the Corporate Headquarters;
acquiree or the parent of the acquiree and (k3) Investments in joint ventures in an the aggregate amount of all such Guarantees, investments, loans and advances made pursuant to this Section 11.04(viii) (collectively, “Section 11.04(viii) Investments”) shall not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07.limitations set forth below:
Appears in 2 contracts
Samples: Credit Agreement (CF Industries Holdings, Inc.), Credit Agreement (CF Industries Holdings, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesotherwise), except:
(a) Permitted InvestmentsInvestments subject, to the extent requested by the Administrative Agent, to control agreements in favor of the Administrative Agent for the benefit of the Secured Parties or otherwise subject to a perfected security interest in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) investments by in existence on the Company or a Subsidiary date of this Agreement and described in the capital stock of its SubsidiariesSchedule 6.04;
(c) investments by the Company and the Subsidiaries in Equity Interests in their respective Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to a Security Agreement (subject to the limitations applicable to common stock of an Affected Foreign Subsidiary referred to in Section 5.14) and (B) the aggregate amount of investments by Loan Parties in Subsidiaries that are not Loan Parties (together with outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(d) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $10,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(d) loans or advances made by the Company to, a Loan Party to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by to any Subsidiary of obligations of, the Company Loan Party or any other Subsidiary; provided that (A) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to a Security Agreement and (B) the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(c) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $10,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(de) Guarantees constituting Indebtedness permitted by Section 6.01; provided that the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(c) and outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(d)) shall not exceed $10,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(ef) loans or advances or loans made by a Loan Party to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to employees a maximum of $2,000,000 in the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementaggregate at any one time outstanding;
(g) Investments subject to Sections 4.2(a) and 4.4 of the Domestic Security Agreement (and any similar provisions in each Foreign Security Agreement), notes payable, or stock or other securities issued by Account Debtors to a Loan Party pursuant to negotiated agreements with respect to settlement of such 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 Company or consolidates or merges with the Company or any of its Subsidiaries (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 bona fide settlement dispositions of any defaulted Indebtedness or other liability owed to the Company or any Subsidiaryassets permitted by Section 6.05;
(hk) investments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”;
(l) Permitted Acquisitions;
(im) Swap Agreements not entered into for speculative purposesacquisitions made by any Loan Party from any other Loan Party;
(jn) Investments investments in connection with Persons that are not Subsidiaries and/or purchases of assets other than in the ownershipordinary course of business not constituting Permitted Acquisitions from Persons that are not, developmentand do not thereby become, leasingSubsidiaries; provided that, acquisition, construction or improvement of the Corporate Headquartersaggregate outstanding amount permitted under this clause (n) shall not at any time exceed $25,000,000;
(ko) Investments investments by the Company and the Subsidiaries in joint ventures Equity Interests in an aggregate amount not their respective Subsidiaries and loans or advances made by a Loan Party to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of any Subsidiary or made by any Subsidiary to any Loan Party, in each such investment by reference case, made in order to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));consummate Permitted Acquisitions; and
(lp) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date other investments in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.073,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Lifetime Brands, Inc), Credit Agreement (Lifetime Brands, Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will, nor will not, and will not it permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesotherwise), except:
(a) Permitted Investments, subject to, in the case of Loan Parties, control agreements in favor of the applicable Collateral Agent (in each case for the benefit of the Agents, the Lenders and the Issuing Banks) or otherwise subject to a perfected security interest in favor of the applicable Collateral Agent (in each case for the benefit of the Agents, the Lenders and the Issuing Banks);
(b) investments by (and commitments (including consummation of any “put” arrangement in connection therewith) in respect thereof) in existence on the Company or a Subsidiary in the capital stock date of its Subsidiariesthis Agreement and described on Schedule 6.04 and renewals, replacements and extensions thereof;
(c) loans or advances made investments by the Company toLoan Parties and their Subsidiaries in Equity Interests in their respective Subsidiaries, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made provided that in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement case of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered investments made pursuant to Section 5.01(athis paragraph (c) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date by Loan Parties in an aggregate amount Subsidiaries that are not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment Loan Parties, both immediately before and immediately after giving effect (including giving effect on a pro forma basis) thereto effect thereto, (i) no Default or Event of Default has shall have occurred and be continuing, (ii) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such investment is to occur is at least 1.00 to 1.00 (determined on a Pro Forma Basis in respect of the Test Period in effect at such time) and (iii) no Level 4 Minimum Aggregate Availability Period shall be in effect;
(d) loans or advances made by (i) any Borrower to any Subsidiary or any other Borrower or (ii) any Subsidiary to any Borrower or any other Subsidiary, provided that in the case of any loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties, both immediately before and immediately after giving pro forma effect thereto, (i) no Default or Event of Default shall have occurred and be continuing, (ii) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such investment is to occur is at least 1.00 to 1.00 (determined on a Pro Forma Basis in respect of the Test Period in effect at such time) and (iii) no Level 4 Minimum Aggregate Availability Period shall be in effect;
(e) Guarantees constituting Indebtedness permitted by Section 6.01, provided that in the case of any Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party, both immediately before and immediately after giving pro forma effect thereto, (i) no Default or Event of Default shall have occurred and be continuing, (ii) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such investment is to occur is at least 1.00 to 1.00 (determined on a Pro Forma Basis in respect of the Test Period in effect at such time) and (iii) no Level 4 Minimum Aggregate Availability Period shall be in effect;
(f) investments made by any Loan Party in any Subsidiary that is not a Loan Party of the types described in paragraphs (c), (d) and (e) of this Section 6.04; provided that both immediately before and after giving pro forma effect thereto, (i) no Default or Event of Default shall have occurred and be continuing or would occur and (ii) no Level 4 Minimum Aggregate Availability Period shall be in effect; provided further that the Company aggregate principal amount of all investments permitted by this paragraph (f) shall not exceed $75,000,000 at any time outstanding.
(g) investments (including loans and advances) made by any Loan Party in any Subsidiary that is not a Loan Party; provided that (i) such investments are made in compliance the ordinary course of business in connection with the Company’s and its Subsidiaries’ cash management systems and (ii) both immediately before and immediately after giving pro forma effect thereto, (i) no Default or Event of Default shall have occurred and be continuing and (ii) no Level 4 Minimum Aggregate Availability Period shall be in effect.
(h) loans or advances made by any Loan Party and the Subsidiaries to their employees on an arms’-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $10,000,000 in the aggregate at any time outstanding;
(i) subject to the applicable provisions of any Security Agreements (including Sections 4.2(a) and 4.4 of the US Security Agreement), notes payable, or stock or other securities issued by Account Debtors to any Loan Party pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in the ordinary course of business, consistent with past practices;
(j) investments in the form of Swap Agreements permitted by Section 6.076.08;
(k) investments of any Person existing at the time such Person becomes a Subsidiary or consolidates or merges with a 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;
(l) investments received in connection with the dispositions of assets permitted by Section 6.05;
(m) investments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”;
(n) Permitted Acquisitions; provided that both immediately before and immediately after giving pro forma effect thereto, (i) no Default or Event of Default shall have occurred and be continuing, (ii) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such Permitted Acquisition is to occur shall be at least 1.00 to 1.00 (determined on a Pro Forma Basis in respect of the Test Period in effect at such time) and (iii) no Minimum Aggregate Availability Period shall be in effect;
(o) intercompany investments made in connection with the Foreign Reorganization, including any Indebtedness permitted under Section 6.01(m);
(p) investments made by Loan Parties in Subsidiaries that are not Loan Parties; provided that such investments are part of a series of substantially simultaneous investments by Loan Parties in other Loan Parties that results in substantially all the proceeds of the initial investment being invested, loaned or advanced in one or more Loan Parties; and
(q) other investments not otherwise permitted by this Section 6.04; provided that both immediately before and immediately after giving pro forma effect thereto, (i) no Default or Event of Default shall have occurred and be continuing and (ii) no Level 4 Minimum Aggregate Availability Period shall be in effect; provided further that the aggregate principal amount of all investments permitted by this paragraph (q) shall not exceed $50,000,000 in any fiscal year of the Company.
Appears in 2 contracts
Samples: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesotherwise), except:
(a) Permitted InvestmentsInvestments subject, to the extent requested by the Administrative Agent, to control agreements in favor of the Administrative Agent for the benefit of the Secured Parties or otherwise subject to a perfected security interest in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) investments by in existence on the Company or a Subsidiary date of this Agreement and described in the capital stock of its SubsidiariesSchedule 6.04;
(c) investments by the Borrower and the Subsidiaries in Equity Interests in their respective Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to a Security Agreement (subject to the limitations applicable to common stock of an Affected Foreign Subsidiary referred to in Section 5.11) and (B) the aggregate amount of investments by Loan Parties in Subsidiaries that are not Loan Parties (together with outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(d) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $10,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(d) loans or advances made by the Company to, a Loan Party to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by to any Subsidiary of obligations of, the Company Loan Party or any other Subsidiary; provided that (A) any such loans and advances made by a Loan Party shall be evidenced by an Intercompany Note and (B) the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(c) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $10,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(de) Guarantees constituting Indebtedness permitted by Section 6.01; provided that the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(c) and outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(d)) shall not exceed $10,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(ef) loans or advances or loans made by a Loan Party to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to employees a maximum of $2,000,000 in the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementaggregate at any one time outstanding;
(g) Investments subject to Sections 4.2(a) and 4.4 of the Security Agreement, notes payable, or stock or other securities issued by Account Debtors (as defined in the Security Agreement) to a Loan Party pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts (as defined in the Security Agreement) in the ordinary course of business, consistent with past practices;
(h) 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 of its Subsidiaries (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;
(i) investments received in connection with the bona fide settlement dispositions of any defaulted Indebtedness or other liability owed to the Company or any Subsidiaryassets permitted by Section 6.05;
(hj) investments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”;
(k) Permitted Acquisitions;
(il) Swap Agreements not entered into for speculative purposesacquisitions made by any Loan Party from any other Loan Party;
(jm) Investments investments in connection with Persons that are not Subsidiaries and/or purchases of assets other than in the ownershipordinary course of business not constituting Permitted Acquisitions from Persons that are not, developmentand do not thereby become, leasingSubsidiaries; provided that, acquisition, construction or improvement of the Corporate Headquartersaggregate outstanding amount permitted under this clause (m) shall not at any time exceed $25,000,000;
(kn) Investments investments by the Borrower and the Subsidiaries in joint ventures Equity Interests in an aggregate amount not their respective Subsidiaries and loans or advances made by a Loan Party to exceed the greater of any Subsidiary or made by any Subsidiary to any Loan Party, in each case, made in order to consummate Permitted Acquisitions;
(io) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered Swap Obligations incurred pursuant to Section 5.01(a6.01(l) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to permitted under Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))6.17;
(lp) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date other investments in an aggregate amount not to exceed $500,000,000 7,500,000;
(q) the Borrower and its Subsidiaries may (i) acquire and hold accounts receivable owing to any of them if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms, (ii) invest in, acquire and hold cash and cash equivalents, (iii) endorse negotiable instruments held for collection in the ordinary course of business or (iv) make deposits permitted under Section 6.02;
(r) loans and advances to directors, employees and officers of the Borrower and its Subsidiaries for bona fide business purposes to purchase Equity Interests of the Borrower, in an aggregate amount not to exceed $250,000 at any time outstanding in any Person or Personsoutstanding;
(ms) Investments so long as prior investments in securities of trade creditors or customers in the ordinary course of business received in settlement of a bona fide dispute or judgment or upon foreclosure or pursuant to making any plan of reorganization or liquidation or similar arrangement upon the bankruptcy or insolvency of such Investment trade creditors or customers;
(t) investments to the extent such investments reflect an increase in the value of investments;
(u) investments consisting of xxxx xxxxxxx money deposits made by the Borrower or any Subsidiary in connection with any letter of intent or purchase agreement permitted hereunder; and
(v) investments acquired in connection with Permitted Acquisitions. The amount of any investment shall be the original cost of such investment plus the cost of all additions thereto less all returns of capital, dividends and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default other cash returns thereof and less all liabilities expressly and irrevocably assumed by another person in connection with the sale of such investment, without any adjustments for increases or Event decreases in value, or write ups, write downs or write offs with respect to such investment. The amount of Default has occurred any loan shall be the initial principal amount of such loan less all returns of principal and is continuing or would occur and (ii) the Company is in compliance with Section 6.07other cash returns thereof.
Appears in 2 contracts
Samples: Senior Secured Credit Agreement (Lifetime Brands, Inc), Senior Secured Credit Agreement (Lifetime Brands, Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and Loan Parties will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Company or a Subsidiary in Closing Date, and set forth on Schedule 6.04, to the capital stock extent such investments would not be permitted under any other clause of its Subsidiariesthis Section;
(c) loans or advances made by the Company toany Loan Party to any other Loan Party, PROVIDED that any such loans and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees a Borrower shall be evidenced by any Subsidiary of obligations of, a promissory note pledged pursuant to the Company or any other SubsidiaryPledge Agreement;
(d) Guarantees constituting Indebtedness permitted by Section 6.01, PROVIDED that such Guarantees by the Borrowers shall not exceed $5,000,000.00 in the aggregate at any time outstanding;
(e) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business; and
(f) loans or advances to employees for the purpose of travel, entertainment or loans made relocation in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 500,000.00 to any employee or $2,000,000.00 in the aggregate at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Jo-Ann Stores Inc), Credit Agreement (Jo-Ann Stores Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Each of the Company and the Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) Direct or indirect investments by the Company or a Subsidiary and the Borrower in the capital stock Equity Interests of its Subsidiaries;
(c) loans or advances made by the Company to, Borrower to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.016.1;
(e) extensions of trade credit in the ordinary course of business;
(f) loans and advances or loans made to employees of any Group Member in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for all Group Members not to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementexceed $1,000,000 at any one time outstanding;
(g) intercompany Investments received by any Group Member in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company Borrower or any Subsidiary;Person that, prior to such investment, is a Subsidiary Guarantor; and
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 permitted by Section 6.3 and (ii) 2.75% Investments consisting of Total Assets (determined at the time A) acquisitions of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) real property (or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (binterests therein), (B) acquisitions of loans secured by real property or Equity Interests, (C) the most recent financial statements referred to in Section 3.04(a));
making of loans secured by real property or Equity Interests, and (lD) Investmentsthe purchase of Equity Interests, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after all consistent with the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments Borrower’s business strategy, so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing continuing, or would occur after giving effect thereto; provided that Investments by the Company, the Borrower and their Subsidiaries in Equity Interests (iiother than Equity Interests (1) in their respective Subsidiaries, (2) in Unconsolidated Affiliates, (3) acquired in connection with transactions permitted by Section 6.3 that are consistent with the Company Borrower’s business strategy, or (4) in other Persons in which the Company, the Borrower or one of their Subsidiaries is in compliance with Section 6.07the general partner, the managing member or otherwise has rights of Control over such Person or has rights of specific Control over the use and/or disposition of its interest therein) shall not exceed 10% of Total Asset Value.
Appears in 2 contracts
Samples: Credit Agreement (Healthcare Trust of America, Inc.), Credit Agreement (Healthcare Trust of America, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will notNo Borrower shall, and will not nor shall it permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Borrower and a Wholly-Owned Subsidiary that is a Restricted Subsidiary prior to such merger or consolidationmerger) any capital stockStock, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or unit, except for the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliates, exceptfollowing:
(ai) Permitted InvestmentsInvestments in cash and Cash Equivalents;
(bii) investments by Investments in existence on the Company date of this Agreement or a Subsidiary committed to be made pursuant to an agreement existing on the date of this Agreement, in the capital stock of its Subsidiarieseach case described in Schedule 6.04(d)(ii);
(ciii) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made Investments by any Borrower or any Restricted Subsidiary to, and Guarantees by in any Subsidiary of obligations of, the Company other Borrower or any other SubsidiaryLoan Party;
(div) Guarantees constituting Indebtedness permitted by Section 6.016.04(a);
(ev) Permitted Acquisitions;
(vi) loans and advances to directors, officers and employees of any Borrower or loans made any of its respective Restricted Subsidiaries in the ordinary course of business (including for travel, entertainment and relocation expenses and analogous ordinary business purposes and to employees finance the purchase of the Company Stock of LiventArcadium) in an aggregate amount for any Borrower and its Subsidiariesany Restricted Subsidiaries not to exceed $10 million at any time outstanding;
(fvii) investments received in connection with the bankruptcy or reorganization of any Person or in settlement of obligations of, or disputes with, any Person arising in the ordinary course of business;
(viii) Hedging Contracts permitted by Section 6.04(k);
(A) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business or (B) 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;
(x) to the extent constituting Investments, performance guarantees of obligations of any Borrower or any of its respective Restricted Subsidiaries in the ordinary course of business;
(xi) Investments made in respect of joint ventures (“JV Investment”) or other similar agreements or partnership not to exceed $150 million in any fiscal year (the “JV Investment Basket”);
(xii) any Investment so long as, after giving effect thereto on a pro forma basis, (A) no Event of Default shall have occurred and be continuing or would result therefrom and (r) the First Lien Leverage Ratio, as of the last day of the most recently ended Fiscal Quarter, does not exceed 2.50:1.00;
(xiii) Investments made by any Borrower and/or any of its Restricted Subsidiaries in an aggregate outstanding amount not to exceed the portion, if any, of the Available Amount Basket on such date that such Borrower or such Restricted Subsidiary elects to apply to this clause (xiii), provided, that no Event of Default shall have occurred and be continuing or would result therefrom;
(xiv) Investments made in Restricted Subsidiaries, which are not also Loan Parties, or in Nemaska Lithium Inc., a corporation amalgamated and existing on under the Effective Date federal laws of Canada, in an aggregate amount (valued at cost) not to exceed $200 million (net of any return or repayment) during the term of this Agreement; provided, however, that any Investment in Restricted Subsidiaries which are not also Loan Parties made in order to make an ultimate JV Investment shall not be included within this clause (xiv) to the extent such Investment is included within the JV Investment Basket;
(xv) in addition to Investments otherwise expressly permitted under by this Section 6.04(d), Investments by any Borrower or any of its respective Restricted Subsidiaries in an aggregate amount (valued at cost) not to exceed $50 million (net of any return or repayment) during the term of this Agreement;
(gxvi) Investments received to the extent that payment for such investments is made solely with newly issued Stock of LiventArcadium;
(xvii) Investments in or by a qualified receivables or factoring entity in connection with the bona fide settlement of any defaulted Indebtedness a Permitted Factoring or other liability owed to the Company or any SubsidiaryReceivables Transaction;
(hxviii) Permitted Acquisitions;Investments made by any Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary that is not a Loan Party; and
(i) Swap Agreements not entered into for speculative purposes;
(jxix) Investments in connection with Cash Pooling Arrangements incurredmade in the ownership, development, leasing, acquisition, construction or improvement ordinary course of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 business and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance consistent with Section 6.07past practice.
Appears in 2 contracts
Samples: Credit Agreement (Livent Corp.), Credit Agreement (Arcadium Lithium PLC)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesotherwise), except:
(a) Permitted Investments;
(b) investments in existence on the date hereof and described in Schedule 6.04;
(c) investments by the Company or a Subsidiary and its Subsidiaries in the capital stock of its Equity Interests in their respective Subsidiaries;
(cd) loans or advances made by the Company to, any Loan Party to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company to a Loan Party or any other Subsidiary;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) loans or advances or loans made by a Loan Party to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to employees a maximum of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement$1,000,000;
(g) Investments notes payable, or stock or other securities issued by account debtors to a Loan Party pursuant to negotiated agreements with respect to settlement of such account debtor’s accounts receivable 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 Company or consolidates or merges with the Company 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 bona fide settlement disposition of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquartersassets permitted by Section 6.05;
(k) Investments investments in joint ventures in an aggregate amount not to exceed the greater ordinary course of (i) $100,000,000 business consistent with past practice and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) reasonable extensions, evolutions or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));developments thereof; and
(l) Investments, investments constituting deposits described in addition to Investments permitted under clauses (ac) through and (jd) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event definition of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07term “Permitted Encumbrances”.
Appears in 2 contracts
Samples: Credit Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.), Credit Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and nor will not it permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Company or a Subsidiary Borrower in the capital stock Equity Interests of its Subsidiariesany Restricted Subsidiary;
(c) loans or advances made investments by the Company to, and Guarantees by the Company Borrower or Guarantor consisting of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;intercompany Indebtedness permitted under Section 7.01(c)
(d) Guarantees constituting Indebtedness permitted by Section 6.017.01;
(e) advances or loans investments by the Borrower and its Restricted Subsidiaries that are (1) customary in the oil and gas business, (2) made in the ordinary course of business to employees of the Company Borrower’s or such Restricted Subsidiary’s business, and its Subsidiaries(3) made in the form of, or pursuant to, oil, gas and mineral leases, operating agreements, farm-in agreements, farm-out agreements, development agreements, unitization agreements, joint bidding agreements, services contracts and other similar agreements that a reasonable and prudent oil and gas industry owner or operator would find acceptable;
(f) Investments existing on investments consisting of Swap Agreements to the Effective Date not otherwise extent permitted under this Agreement;Section 7.05; and
(g) Investments received in connection other investments by the Borrower and the Restricted Subsidiaries; provided that, on the date any such other investment is made, the amount of such investment, together with the bona fide settlement of any defaulted Indebtedness or all other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered investments made pursuant to Section 5.01(a) or this clause (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (jg) of this Section 6.04 made after 7.04 (in each case determined based on the cost of such investment) since the Effective Date Date, does not exceed in an aggregate amount not to exceed the aggregate, $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.071,000,000.
Appears in 2 contracts
Samples: Senior Term Credit Agreement (Exco Resources Inc), Senior Revolving Credit Agreement (Exco Resources Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, (i) purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or (ii) purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the unit, division, product line (including rights in respect of any licensee under drug or pharmaceutical product) or line of business of such Person, or (iii) acquire an Exclusive License of rights to a trademark license to such licensee from drug or other product line of any Person (each of the Company or any of its Affiliatesforegoing transactions described in the foregoing clauses (i) through (iii), an “Investment”), except:
(a) cash and Permitted Investments;
(b) investments by the Company or Permitted Acquisitions and any Investments in any Subsidiary to finance a Subsidiary in the capital stock of its SubsidiariesPermitted Acquisition;
(c) loans or advances made Investments by the Company toBorrower and its Subsidiaries existing on the date hereof in its Subsidiaries and any modification, and Guarantees by replacement, reinvestment, renewal or extension thereof to the Company of obligations of, extent not involving any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiaryadditional net Investment;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) Investments, loans, advances or loans capital contributions made by the Borrower in the ordinary course of business or to employees of the Company any Subsidiary and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received made by any Subsidiary in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company Borrower or any Subsidiary;
other Subsidiary (hprovided that not more than the Permitted Intercompany Amount in Investments, loans or advances or capital contributions may be made and remain outstanding, at any time, by Loan Parties to Subsidiaries which are not Loan Parties) (as used in this clause (d), “Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed Intercompany Amount” means the greater of (i) $100,000,000 150,000,000 and (ii) 2.7515% of Consolidated Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date as of the delivery last day of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent fiscal quarter for which financial statements are available (or, prior to any such financial statements being available, the last day of the last fiscal quarter included in the financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07.
Appears in 2 contracts
Samples: Credit Agreement (Medivation, Inc.), Credit Agreement (Medivation, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and nor will not it permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Company or a Subsidiary Borrower in the capital stock Equity Interests of its Subsidiariesany Restricted Subsidiary;
(c) loans or advances made investments by the Company to, and Guarantees by the Company Borrower or Guarantor consisting of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;intercompany Indebtedness permitted under Section 7.01(c)
(d) Guarantees constituting Indebtedness permitted by Section 6.017.01;
(e) advances or loans investments by the Borrower and its Restricted Subsidiaries that are (1) customary in the oil and gas business, (2) made in the ordinary course of business to employees of the Company Borrower’s or such Restricted Subsidiary’s business, and its Subsidiaries(3) made in the form of, or pursuant to, oil, gas and mineral leases, operating agreements, farm-in agreements, farm-out agreements, development agreements, unitization agreements, joint bidding agreements, services contracts and other similar agreements that a reasonable and prudent oil and gas industry owner or operator would find acceptable;
(f) Investments existing on investments consisting of Swap Agreements to the Effective Date not otherwise extent permitted under this Agreement;Section 7.05; and
(g) Investments received in connection other investments by the Borrower and the Restricted Subsidiaries; provided that, on the date any such other investment is made, the amount of such investment, together with the bona fide settlement of any defaulted Indebtedness or all other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered investments made pursuant to Section 5.01(a) or this clause (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (jg) of this Section 6.04 made after 7.04 (in each case determined based on the cost of such investment) since the Effective Date Date, does not exceed in an aggregate amount not to exceed the aggregate, $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.0710,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Exco Resources Inc), Credit Agreement (Exco Resources Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or hold, acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of), make or otherwise 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, Investment in any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person all or any substantially all the assets of any other Person constituting or of a business unit unit, division, product line or the rights line of business of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesother Person, except:
(ai) Permitted InvestmentsInvestments in cash and Cash Equivalents;
(bii) investments by Investments existing on the Company or a Subsidiary in the capital stock of its SubsidiariesEscrow Date and set forth on Schedule 7.03(d);
(ciii) (A) Permitted Acquisitions and (B) other Investments by the Borrower and any of its Restricted Subsidiaries in their respective subsidiaries or joint ventures; provided that, the aggregate amount of such Permitted Acquisitions and Investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties and joint ventures (excluding all such Investments, loans, advances and Guarantees existing on the Escrow Date and permitted by clause (ii) above) pursuant to this clause (iii) and clauses (iv) and (v) below shall not exceed $150,000,000 at any time outstanding; provided, further, that in the case of any such Investment under the immediately preceding proviso, (A) no Default shall have occurred and be continuing or shall result therefrom and (B) no more than (i) $50,000,000 of such Investments shall consist of Intellectual Property, (ii) $75,000,000 of such Investments shall be made in joint ventures and (iii) $75,000,000 of such Investments shall be made in Unrestricted Subsidiaries; provided further, that the limitation described in this proviso shall not apply to any acquisition to the extent (A) any such consideration is financed with the proceeds of substantially concurrent sales of Equity Interests of (other than Disqualified Stock) or capital contributions to the Borrower or (B) the Person so acquired (or the Person owning the assets so acquired) becomes a Loan Party even though such Person owns Capital Stock in Persons that are not otherwise required to become Loan Parties, if, in the case of this clause (B), at least 60.0% of the Consolidated EBITDA of the Person(s) acquired in such acquisition (or the Persons owning the assets so acquired) (for this purpose and for the component definitions used in the definition of “Consolidated EBITDA”, determined on a consolidated basis for such Person(s) and the Restricted Subsidiaries) is generated by Person(s) that will become Loan Parties (i.e., disregarding any Consolidated EBITDA generated by Restricted Subsidiaries of such Persons that are not (or will not become) Loan Parties).
(iv) loans or advances made by the Company to, Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary; provided that (A) the Indebtedness resulting therefrom is permitted by Section 7.03(a)(iii) and (B) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (iii) above;
(v) Guarantees by the Company Borrower or any Restricted Subsidiary of Indebtedness or other obligations of, of the Borrower or any Subsidiary, Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and loans several coapplicant with respect to any letter of credit or advances made letter of guaranty); provided that the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, Loan Party shall be subject to the Company or any other Subsidiarylimitation set forth in clause (iii) above;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(gvi) Investments received in connection with the bona fide bankruptcy or reorganization of, or settlement of any defaulted Indebtedness or other liability owed to delinquent accounts and disputes with, customers and suppliers, in each case in the Company or any Subsidiaryordinary course of business;
(hvii) Investments in the form of equity commitments issued to or for the benefit of an Unrestricted Subsidiary in connection with the closing in escrow of an offering of Indebtedness by such Unrestricted Subsidiary the proceeds of which will be used to consummate the transactions set forth in the Odin Acquisition Agreement solely to the extent such Indebtedness will be Permitted AcquisitionsDebt of the Borrower or another Loan Party when the proceeds thereof are released from escrow and the aggregate principal amount of such Indebtedness does not exceed $1,100,000,000; provided that the amount of any such Investment shall not exceed (x) the amount of interest that would accrue on such Indebtedness through the maximum escrow period therefor plus (y) an amount sufficient to fund the upfront fees and original issue discount and any applicable premium with respect to such Indebtedness;
(iviii) Swap Agreements not entered into deposits, prepayments and other credits to suppliers, lessors and landlords made in the ordinary course of business;
(ix) advances by the Borrower or any Restricted Subsidiary to employees in the ordinary course of business consistent with past practices for speculative travel and entertainment expenses, relocation costs and similar purposes;
(jx) Investments made as a result of receipt of noncash consideration from a sale, transfer or other disposition of assets permitted under Section 7.03(e)(viii);
(xi) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement form of the Corporate HeadquartersSwap Agreements permitted under Section 7.03(m);
(kxii) Investments constituting deposits described in joint ventures clauses (iii) and (iv) of the definition of “Permitted Encumbrances” and endorsements of instruments for collection or deposit in the ordinary course of business;
(xiii) consummation of the Transactions and the Permitted Reorganization Transactions;
(xiv) Investments by a Restricted Subsidiary of the Borrower that is not a Loan Party in any Loan Party or in any other such Restricted Subsidiary that is also not a Loan Party;
(xv) other Investments in an amount not to exceed the Available Amount; provided that, at the time each such Investment is made no Default shall have occurred and be continuing or would result therefrom (or, in the case of an Investment that is necessary or advisable (as determined by the Borrower in good faith) for the consummation of a Limited Condition Acquisition, no Default exists as of the date the definitive acquisition agreements for such Limited Condition Acquisition are entered into);
(xvi) (x) other Investments in any Person in an aggregate amount not to exceed the greater of (i) $100,000,000 125,000,000 and (ii) 2.7511.0% of Total Consolidated Net Tangible Assets at any time outstanding and (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(ay) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to Investments in Section 3.04(a));
(l) Investments, any person engaged in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date a Permitted Business in an aggregate amount not to exceed the greater of (x) $500,000,000 125,000,000 and (y) 11.0% of Consolidated Net Tangible Assets (measured at any the time outstanding in any Person or Persons;of Investment); and
(mxvii) unlimited Investments so long as prior to making such Investment (1) no Unmatured Default or Default shall have occurred and be continuing or would result therefrom and (2) after giving effect (including giving effect to such Investment on a pro forma basisbasis the Senior Secured Net Leverage Ratio shall not exceed 2.75 to 1.00 (calculated as of the last day of the fiscal quarter of the Borrower then most recently ended for which financial statements have been delivered pursuant to Section 7.01(a) thereto (i) no Default or, prior to the first delivery pursuant to Section 7.01(a), Section 5.02(d)(i))). For the purposes of this Section, any unreimbursed payment by the Borrower or Event any Restricted Subsidiary for goods or services delivered to any Subsidiary, other than, in the case of Default has occurred and is continuing or would occur and (ii) the Company is a Restricted Subsidiary, itself, shall be deemed to be an Investment in compliance with Section 6.07such Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Energizer Holdings, Inc.), Incremental Term Loan Amendment and Refinancing Amendment (Energizer Holdings, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. (a) The Company Borrower will not, and will not permit any of its the Significant Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans Loans or advances to, Guarantee make or permit to exist any Guarantees of any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactionstransactions (including pursuant to any merger)) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliates(collectively, "Investments"), except:
(ai) Permitted Investments;
(bii) investments by Investments existing on the Company or a Subsidiary date hereof and set forth in the capital stock of its SubsidiariesSchedule 7.4(a)(ii);
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;
(diii) Guarantees constituting Indebtedness permitted by Section 6.01;7.1(a)(v); and
(eiv) advances other Investments, provided that immediately after giving effect thereto, (A) no Default shall have occurred or loans made be continuing and (B) the aggregate book value of the assets of the Subsidiaries shall not exceed 15% of the aggregate book value of the assets of the Borrower and the Subsidiaries on a consolidated assets determined in accordance with GAAP, provided, further that after the date hereof, neither the Borrower nor any Subsidiary shall acquire any ownership interest in any nuclear energy generating plants.
(b) Notwithstanding the foregoing, the following shall not be considered Investments prohibited or limited by this Section 7.4(a): (i) current trade and customer accounts receivable for property leased, goods furnished or services rendered in the ordinary course of business and payable in accordance with customary trade terms, (ii) deposits, advances or prepayments to suppliers for property leased or licensed, goods furnished and services rendered in the ordinary course of business, (iii) advance to employees of the Company for relocation and its Subsidiaries;
travel expenses, drawing accounts and similar expenditures, (fiv) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received stock or other securities acquired in connection with the bona fide settlement satisfaction or enforcement of any defaulted Indebtedness or other liability owed claim due to the Company Borrower or any Subsidiary;Subsidiary or as security for any such Indebtedness or claim or (v) demand deposits in banks or similar financial institutions.
(hc) Permitted Acquisitions;In determining the amount of outstanding Investments:
(i) Swap Agreements not entered into for speculative purposes;
(j) the amount of any Investments shall be the cost thereof minus any returns of capital in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets cash on such Investment (determined at the time of each in accordance with GAAP without regard to amounts realized as income on such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)Investment);
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company amount of acquisition shall include the amount of any Indebtedness assumed in connection with such purchase or secured by any asset acquired in such purchase (whether or not any Indebtedness is assumed) or for which any Person that becomes a Subsidiary is liable on the date on which the securities of such Person are acquired; and
(iii) no Investment shall be increased as the result of an increase in compliance with Section 6.07the undistributed retained earnings of the Person in which the Investment was made or decreased as a result of an equity interest in the losses of such Person.
Appears in 1 contract
Samples: Credit Agreement (CMP Group Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing, but excluding purchases of capital stock or other securities of the Company, and options, warrants or other rights to acquire any such capital stock or other securities, to the extent permitted under Section 6.06) 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, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) Receivables owing to the Company or any of its Subsidiaries arising from sales of inventory and delivery of services under usual and customary terms in the ordinary course of business;
(c) advances not to exceed $5,000,000 outstanding at any time to employees of the Company and its Subsidiaries to meet expenses incurred by such employees in the ordinary course of business;
(d) Loans in the ordinary course of business and generally consistent with past practices, to officers, directors and employees in connection with the granting of stock options or as incentive or bonus compensation;
(e) (i) investments by the Company or a Subsidiary any of its Subsidiaries existing on the date hereof in the capital stock of their respective Subsidiaries and (ii) investments by the Company or any of its Subsidiaries in the capital stock of its Subsidiariesrespective Subsidiaries which are Subsidiary Guarantors, whether now existing or hereafter created or established;
(cf) investments, loans and advances from the Irish Subsidiary to, and other investments of the Irish Subsidiary in, the Company, any Subsidiary of the Company or any Joint Venture provided that (x) the aggregate outstanding amount of investments, loans and advances from the Irish Subsidiary to the Company, any Subsidiary and any Joint Venture less (y) the aggregate outstanding amount of investments, loans and advances from the Company, any Subsidiary and any Joint Venture to the Irish Subsidiary, does not exceed $100,000,000 at any time;
(g) investments, loans or advances not otherwise permitted by this Section made by the Company to, to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company or any other Subsidiary;Subsidiary (provided that not more than $75,000,000 in investments, loans, advances or capital contributions may be outstanding at any time, during the term of this Agreement, by any Loan Party to a Person which is not a Loan Party).
(dh) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(hi) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownershipForbo Acquisition and investments, development, leasing, acquisition, construction loans and advances by the Company or improvement of any Subsidiary to any Subsidiary to consummate the Corporate HeadquartersForbo Acquisition;
(k) Investments Existing Joint Ventures; and
(l) any other investment, loan or advance not otherwise permitted by this Section (other than acquisitions, but including investments or capital contributions by the Company or any Subsidiary in joint ventures in an Joint Ventures) so long as the aggregate amount outstanding of all such investments, loans and advances does not to exceed $75,000,000 during the greater term of this Agreement. For purposes of determining compliance with this Section 6.04, (i) $100,000,000 the amount of any investment, loan or advance shall be the amount actually invested, loaned or advanced, without adjustment for subsequent increases or decreases in the value of such investment, loan or advance, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of such investment, loan or advance and (ii) 2.75% if an investment, loan or advance meets the criteria of Total Assets (determined at more than one of the time types of each such investment by reference to investments, loans and advances described in the above clauses, the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition its reasonable discretion, shall classify, and from time to Investments permitted under clauses (a) through (j) time may reclassify, such investment, loan or advance and only be required to include the amount and type of this Section 6.04 made after the Effective Date such investment, loan or advance in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making one of such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07clauses.
Appears in 1 contract
Samples: Credit Agreement (Fuller H B Co)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will notNo Borrower shall, and will not nor shall it permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Borrower and a Wholly-Owned Subsidiary that is a Restricted Subsidiary prior to such merger or consolidationmerger) any capital stockStock, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any 97 WEIL:\98721861\10\35899.0596 investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit unit, except for the following: (i) Investments in cash and Cash Equivalents; (ii) Investments in existence on the date of this Agreement or committed to be made pursuant to an agreement existing on the rights date of this Agreement, in each case described in Schedule 6.04(d)(ii); (iii) Investments by any licensee under a trademark license to such licensee from the Company Borrower or any of its Affiliates, except:
(a) Permitted Investments;
(b) investments by the Company or a Restricted Subsidiary in the capital stock of its Subsidiaries;
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company other Borrower or any other Subsidiary;
Loan Party; (div) Guarantees constituting Indebtedness permitted by Section 6.01;
6.04(a); (ev) Permitted Acquisitions; (vi) loans and advances to directors, officers and employees of any Borrower or loans made any of its respective Restricted Subsidiaries in the ordinary course of business (including for travel, entertainment and relocation expenses and analogous ordinary business purposes and to employees finance the purchase of the Company Stock of Livent) in an aggregate amount for any Borrower and its Subsidiaries;
any Restricted Subsidiaries not to exceed $10 million at any time outstanding; (fvii) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments investments received in connection with the bona fide bankruptcy or reorganization of any Person or in settlement of obligations of, or disputes with, any defaulted Indebtedness Person arising in the ordinary course of business; (viii) Hedging Contracts permitted by Section 6.04(k); (ix)
(A) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business or (B) 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; (x) to the extent constituting Investments, performance guarantees of obligations of any Borrower or any of its respective Restricted Subsidiaries in the ordinary course of business; (xi) Investments made in respect of joint ventures (“JV Investment”) or other liability owed similar agreements or partnership not to exceed $150 million in any fiscal year (the “JV Investment Basket”); (xii) any Investment so long as, after giving effect thereto on a pro forma basis, (A) no Event of Default shall have occurred and be continuing or would result therefrom and (B) the First Lien Leverage Ratio, as of the last day of the most recently ended Fiscal Quarter, does not exceed 2.50:1.00; (xiii) Investments made by any Borrower and/or any of its Restricted Subsidiaries in an aggregate outstanding amount not to exceed the portion, if any, of the 98 WEIL:\98721861\10\35899.0596 Available Amount Basket on such date that such Borrower or such Restricted Subsidiary elects to apply to this clause (xiii), provided, that no Event of Default shall have occurred and be continuing or would result therefrom; (xiv) Investments made in Restricted Subsidiaries, which are not also Loan Parties, or in Nemaska Lithium Inc., a corporation amalgamated and existing under the federal laws of Canada, in an aggregate amount (valued at cost) not to exceed $200 million (net of any return or repayment) during the term of this Agreement; provided, however, that any Investment in Restricted Subsidiaries which are not also Loan Parties made in order to make an ultimate JV Investment shall not be included within this clause (xiv) to the Company extent such Investment is included within the JV Investment Basket; (xv) in addition to Investments otherwise expressly permitted by this Section 6.04(d), Investments by any Borrower or any Subsidiary;
of its respective Restricted Subsidiaries in an aggregate amount (hvalued at cost) not to exceed $50 million (net of any return or repayment) during the term of this Agreement; (xvi) Investments to the extent that payment for such investments is made solely with newly issued Stock of Livent; (xvii) Investments in or by a qualified receivables or factoring entity in connection with a Permitted Acquisitions;
Factoring or Receivables Transaction; (ixviii) Swap Agreements Investments made by any Restricted Subsidiary that is not entered into for speculative purposes;
a Loan Party in any other Restricted Subsidiary that is not a Loan Party; and (jxix) Investments in connection with Cash Pooling Arrangements incurred in the ownership, development, leasing, acquisition, construction or improvement ordinary course of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 business and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance consistent with Section 6.07past practice.
Appears in 1 contract
Samples: Credit Agreement (Livent Corp.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and nor will not it permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Company or a Subsidiary Borrower in the capital stock Equity Interests of its Subsidiariesany Restricted Subsidiary;
(c) loans or advances made investments by the Company to, and Guarantees by the Company Borrower or Guarantor consisting of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;intercompany Indebtedness permitted under Section 7.01(c)
(d) Guarantees constituting Indebtedness permitted by Section 6.017.01;
(e) advances or loans investments by the Borrower and its Restricted Subsidiaries that are (1) customary in the oil and gas business, (2) made in the ordinary course of business to employees of the Company Borrower’s or such Restricted Subsidiary’s business, and its Subsidiaries(3) made in the form of, or pursuant to, oil, gas and mineral leases, operating agreements, farm-in agreements, farm-out agreements, development agreements, unitization agreements, joint bidding agreements, services contracts and other similar agreements that a reasonable and prudent oil and gas industry owner or operator would find acceptable;
(f) Investments existing on investments consisting of Swap Agreements to the Effective Date not otherwise extent permitted under this Agreement;Section 7.05; and
(g) Investments received in connection with other investments by the bona fide settlement of any defaulted Indebtedness or other liability owed to Borrower and the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures Restricted Subsidiaries in an aggregate principal amount not to exceed exceeding $1,000,000 at any time Adjustment Percentage is used in the greater calculation of (i) $100,000,000 Borrowing Base Usage and (ii) 2.75% thereafter other investments; provided that, on the date any such other investment is made, the amount of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered investment, together with all other investments made pursuant to this clause (g) of Section 5.01(a7.04 (in each case determined based on the cost of such investment) since the Effective Date, does not exceed (A) in the aggregate, $5,000,000 if Borrowing Base Usage is equal to or (b) or, if prior to greater than 75% on the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect to such investment, and (including B) in the aggregate, $10,000,000 if Borrowing Base Usage is less than 75% on the date of and after giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07to such investment.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will notNo Borrower shall, and will not nor shall it permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Borrower and a Wholly-Owned Subsidiary that is a Restricted Subsidiary prior to such merger or consolidationmerger) any capital stockStock, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or unit, except for the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliates, exceptfollowing:
(ai) Permitted InvestmentsInvestments in cash and Cash Equivalents;
(bii) investments by Investments in existence on the Company date of this Agreement or a Subsidiary committed to be made pursuant to an agreement existing on the date of this Agreement, in the capital stock of its Subsidiarieseach case described in Schedule 6.04(d)(ii);
(ciii) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made Investments by any Borrower or any Restricted Subsidiary to, and Guarantees by in any Subsidiary of obligations of, the Company other Borrower or any other SubsidiaryLoan Party;
(div) Guarantees constituting Indebtedness permitted by Section 6.016.04(a);
(ev) Permitted Acquisitions;
(vi) loans and advances to directors, officers and employees of any Borrower or loans made any of its respective Restricted Subsidiaries in the ordinary course of business (including for travel, entertainment and relocation expenses and analogous ordinary business purposes and to employees finance the purchase of the Company Stock of Livent) in an aggregate amount for any Borrower and its Subsidiariesany Restricted Subsidiaries not to exceed $10 million at any time outstanding;
(fvii) investments received in connection with the bankruptcy or reorganization of any Person or in settlement of obligations of, or disputes with, any Person arising in the ordinary course of business;
(viii) Hedging Contracts permitted by Section 6.04(k);
(A) Investments existing consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business or (B) 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;
(x) to the extent constituting Investments, performance guarantees of obligations of any Borrower or any of its respective Restricted Subsidiaries in the ordinary course of business;
(xi) Investments made in respect of joint ventures or other similar agreements or partnership not to exceed $50 million in any fiscal year;
(xii) any Investment so long as, after giving effect thereto on a pro forma basis, (A) no Event of Default shall have occurred and be continuing or would result therefrom and (B) the Effective Date Leverage Ratio, as of the last day of the most recently ended Fiscal Quarter, does not otherwise permitted under exceed 2.50:1.00;
(xiii) Investments made by any Borrower and/or any of its Restricted Subsidiaries in an aggregate outstanding amount not to exceed the portion, if any, of the Available Amount Basket on such date that such Borrower or such Restricted Subsidiary elects to apply to this clause (xiii), provided, that no Event of Default shall have occurred and be continuing or would result therefrom;
(xiv) Investments made in Restricted Subsidiaries which are not also Loan Parties in an aggregate amount (valued at cost) not to exceed $100 million (net of any return or repayment) during the term of this Agreement;
(gxv) in addition to Investments received in connection with the bona fide settlement of otherwise expressly permitted by this Section 6.04(d), Investments by any defaulted Indebtedness or other liability owed to the Company Borrower or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures its respective Restricted Subsidiaries in an aggregate amount not to exceed the greater of (ivalued at cost) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at 50 million (net of any time outstanding in any Person return or Personsrepayment) during the term of this Agreement;
(mxvi) Investments so long as prior to making the extent that payment for such Investment and after giving effect investments is made solely with newly issued Stock of Livent;
(including giving effect on xvii) Investments in or by a pro forma basisqualified receivables or factoring entity in connection with a Permitted Factoring or Receivables Transaction; and
(xviii) thereto (i) no Default or Event of Default has occurred and Investments made by any Restricted Subsidiary that is continuing or would occur and (ii) the Company not a Loan Party in any other Restricted Subsidiary that is in compliance with Section 6.07not a Loan Party.
Appears in 1 contract
Samples: Credit Agreement (Livent Corp.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
(c) investments by the Company or a Subsidiary Borrower existing on the date hereof in the capital stock of its Subsidiaries;
(cd) loans or advances made by the Company to, Borrower to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company Borrower or any other Subsidiary;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) advances investments of any Person existing at the time such Person becomes a Subsidiary of the Borrower or loans consolidates or merges with the Borrower or any of the Subsidiaries (including in connection with a permitted acquisition) so long as such investments were not made in the ordinary course contemplation of business to employees such Person becoming a Subsidiary or of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;such merger; and
(g) Investments received investments constituting deposits described in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
clauses (hc) Permitted Acquisitions;
and (id) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date definition of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))term “Permitted Encumbrances”;
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Credit Party will, nor will not, and will not it permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Company any Credit Party in any Borrower or in any Person that is, or thereby becomes, a Restricted Subsidiary and investments by Holdings in the capital stock of its SubsidiariesGeneral Partner;
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made investments by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company Borrower or any other SubsidiaryGuarantor consisting of intercompany Indebtedness permitted under Section 6.01(c);
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances investments made by any Borrower (other than Holdings) or loans made any of its Restricted Subsidiaries in the ordinary course of business to employees in direct ownership interests in Midstream Assets or other similar arrangements which are usual and customary for Midstream Services provided in connection with oil and gas exploration and production activities located within the geographic boundaries of the Company and its SubsidiariesUnited States of America;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementinvestments made by any Credit Party consisting of Permitted Acquisitions;
(g) Investments received in connection with the bona fide settlement investments consisting of any defaulted Indebtedness or other liability owed Swap Agreements to the Company or any Subsidiaryextent permitted under Section 6.06;
(h) Permitted Acquisitions;investments permitted under Sections 6.03 and 6.04; and
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection other investments by the Credit Parties; provided that, on the date any such other investment is made, the amount of such investment, together with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not all other investments made pursuant to exceed the greater of this clause (i) $100,000,000 and of Section 6.05 (iiin each case determined based on the cost of such investment) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after since the Effective Date Date, does not exceed in an aggregate amount not to exceed the aggregate, $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.075,000,000.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesotherwise), except:
(a) Permitted InvestmentsInvestments subject, to the extent requested by the Administrative Agent, to control agreements in favor of the Administrative Agent for the benefit of the Secured Parties or otherwise subject to a perfected security interest in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) investments by in existence on the Company or a Subsidiary date of this Agreement and described in the capital stock of its SubsidiariesSchedule 6.04;
(c) investments by the Company and the Subsidiaries in Equity Interests in their respective Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to a Security Agreement (subject to the limitations applicable to common stock of an Affected Foreign Subsidiary referred to in Section 5.14) and (B) the aggregate amount of investments by Loan Parties in Subsidiaries that are not Loan Parties (together with outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(d) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $20,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(d) loans or advances made by the Company to, a Loan Party to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by to any Subsidiary of obligations of, the Company Loan Party or any other Subsidiary; provided that (A) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to a Security Agreement and (B) the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(c) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $20,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(de) Guarantees constituting Indebtedness permitted by Section 6.01; provided that the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(c) and outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(d)) shall not exceed $20,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(ef) loans or advances or loans made by a Loan Party to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to employees a maximum of $2,000,000 in the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementaggregate at any one time outstanding;
(g) Investments subject to Sections 4.2(a) and 4.4 of the Domestic Security Agreement (and any similar provisions in each Foreign Security Agreement), notes payable, or stock or other securities issued by Account Debtors to a Loan Party pursuant to negotiated agreements with respect to settlement of such 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 Company or consolidates or merges with the Company or any of its Subsidiaries (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 bona fide settlement dispositions of any defaulted Indebtedness or other liability owed to the Company or any Subsidiaryassets permitted by Section 6.05;
(hk) investments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”;
(l) Permitted Acquisitions;
(im) Swap Agreements not entered into for speculative purposesacquisitions made by any Loan Party from any other Loan Party;
(jn) Investments investments in connection with Persons that are not Subsidiaries and/or purchases of assets other than in the ownershipordinary course of business not constituting Permitted Acquisitions from Persons that are not, developmentand do not thereby become, leasingSubsidiaries; provided that, acquisition, construction or improvement of the Corporate Headquartersaggregate outstanding amount permitted under this clause (n) shall not at any time exceed $25,000,000;
(ko) Investments investments by the Company and the Subsidiaries in joint ventures Equity Interests in an aggregate amount not their respective Subsidiaries and loans or advances made by a Loan Party to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of any Subsidiary or made by any Subsidiary to any Loan Party, in each such investment by reference case, made in order to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))consummate Permitted Acquisitions;
(lp) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date other investments in an aggregate amount not to exceed $500,000,000 7,500,000; and
(q) the Company and its Subsidiaries may (i) acquire and hold accounts receivable owing to any of them if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms, (ii) invest in, acquire and hold cash and cash equivalents, (iii) endorse negotiable instruments held for collection in the ordinary course of business or (iv) make deposits permitted under Section 6.02;
(r) loans and advances to directors, employees and officers of the Company and its Subsidiaries for bona fide business purposes to purchase Equity Interests of the Company, in an aggregate amount not to exceed $250,000 at any time outstanding in any Person or Personsoutstanding;
(ms) Investments so long as prior investments in securities of trade creditors or customers in the ordinary course of business received in settlement of a bona fide dispute or judgment or upon foreclosure or pursuant to making any plan of reorganization or liquidation or similar arrangement upon the bankruptcy or insolvency of such Investment and after giving effect trade creditors or customers;
(including giving effect on a pro forma basist) thereto investments to the extent such investments reflect an increase in the value of investments;
(iu) no Default investments consisting of xxxx xxxxxxx money deposits made by the Company or Event any Subsidiary in connection with any letter of Default has occurred and is continuing intent or would occur and purchase agreement permitted hereunder;
(iiv) the Specified Acquisition;
(w) investments acquired in connection with Permitted Acquisitions; and
(x) Guarantees entered into in the ordinary course of business by the Company is or any Subsidiary of real property leases and similar obligations of the Company or any Subsidiary. The amount of any investment shall be the original cost of such investment plus the cost of all additions thereto less all returns of capital, dividends and other cash returns thereof and less all liabilities expressly and irrevocably assumed by another person in compliance connection with Section 6.07the sale of such investment, without any adjustments for increases or decreases in value, or write ups, write downs or write offs with respect to such investment. The amount of any loan shall be the initial principal amount of such loan less all returns of principal and other cash returns thereof.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Company or a Subsidiary in the capital stock of its SubsidiariesEffective Date and set forth on Schedule 6.04;
(c) the acquisition of the St. Xxxx Company Interests for an aggregate amount not to exceed $1,500,000 and investments by the Borrower and its 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 Pledge Agreement (subject to the limitations applicable to common stock of a Foreign Subsidiary referred to in Section 5.12) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Subsidiaries that are not Loan Parties (excluding (A) all such investments, loans, advances and Guarantees existing on the Effective Date and set forth on Schedule 6.04 and (B) the investment by or on behalf of the Borrower to acquire the St. Xxxx Company Interests, to the extent such investment does not exceed $1,500,000) shall not exceed $27,500,000 at any time outstanding; provided further, that any investments in joint ventures permitted by clause (l) below shall reduce the amount available for investments, loans, advances and Guarantees pursuant to clause (ii) of the immediately preceding proviso;
(d) loans or advances made by the Company to, Borrower to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company Borrower or any other Subsidiary; provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement and (ii) the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(ii) above;
(de) Guarantees constituting Indebtedness permitted by Section 6.01; provided that (i) a Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon any release and termination of such Guarantee of the Obligations, and (ii) the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(ii) above;
(ef) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementbusiness;
(g) Investments received loans or advances made by the Borrower and its Subsidiaries to their respective directors, officers and employees on an arm’s length basis in connection with the bona fide settlement ordinary course of business; provided that the aggregate amount of all loans and advances permitted by this clause (g) shall not exceed $1,250,000 at any defaulted Indebtedness or other liability owed to the Company or any Subsidiarytime outstanding;
(h) Permitted Acquisitions; provided that the sum of all consideration paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness and the aggregate liquidation preference of any Permitted Acquisition Preferred Stock issued as deferred purchase price and the fair market value of any other non-cash consideration, but excluding common stock issued by the Borrower), plus the aggregate principal amount of all unsecured Indebtedness otherwise incurred and all secured or unsecured Indebtedness otherwise assumed, in each case in connection with, or resulting from, Permitted Acquisitions (including Indebtedness of any acquired Persons outstanding at the time of Permitted Acquisitions), shall not exceed, on a cumulative basis (i) $7,500,000 during any fiscal year and (ii) $20,000,000 during the term of this Agreement;
(i) Swap Agreements not entered into for speculative purposes;
receivables owing to the Borrower or a Subsidiary if created in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (jincluding the dating of receivables and extensions of payment in the ordinary course of business consistent with past practices) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate HeadquartersBorrower or such Subsidiary;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will Borrowers shall not, and will not nor shall the Lead Borrower permit any of its Subsidiaries the other Credit Parties to, purchase, hold or acquire (including pursuant to any merger or consolidation amalgamation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationamalgamation) any capital stockstock or other equity interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or (each of the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesforegoing, exceptan “Investment”), except for:
(a) Permitted InvestmentsAcquisitions;
(b) investments by the Company or a Subsidiary in the capital stock of its SubsidiariesPermitted Investments;
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementand set forth on Schedule 6.4;
(gd) Investments received in connection with the bona fide bankruptcy or reorganization of, or settlement of any defaulted Indebtedness or other liability owed to delinquent accounts and disputes with, customers and suppliers, in each case in the Company or any Subsidiaryordinary course of business;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(je) Investments in connection with Subsidiaries, provided, however, that the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered Investments pursuant to Section 5.01(athis paragraph (e) in Subsidiaries that are not Borrowers or (b) or, if prior Guarantors may not at any time exceed $10,000,000 from time to time in the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made aggregate from and after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) Date, further provided that no Default or Event of Default has occurred and is continuing or would occur result from such Investment;
(f) loans or advances to employees for the purpose of travel, entertainment or relocation in the ordinary course of business and (ii) consistent with past practices, not exceeding $1,000,000 in the Company is aggregate at any time outstanding; provided, that no such advances to any single employee shall exceed $500,000 in compliance with Section 6.07.the aggregate;
Appears in 1 contract
Samples: Credit Agreement (Genesco Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will Borrowers shall not, and will shall not permit any of its Subsidiaries other Loan Party to, purchase, hold or acquire (including pursuant to any merger or consolidation amalgamation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationamalgamation) any capital stockCapital Stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee guarantee any obligations Indebtedness of, or make or permit to exist any investment Investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or (each of the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesforegoing, exceptan “Investment”), except for:
(a) Permitted InvestmentsAcquisitions;
(b) investments by the Company or a Subsidiary in the capital stock of its SubsidiariesPermitted Investments;
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date Date, and set forth in the Information Certificate, to the extent such investments would not otherwise be permitted under any other clause of this AgreementSection;
(gd) Investments received in connection with the bona fide bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(e) Investments in Swap Contracts other than for speculative purposes, entered into in the ordinary course of business;
(f) Permitted Stock Repurchases, as long as no Event of Default exists at the time of making of such Permitted Stock Repurchase or would arise therefrom;
(g) Investments by a Loan Party in a Subsidiary (including, without limitation, in a Foreign Subsidiary) which is not a Loan Party, in a joint venture (including, without limitation, in or with a foreign Person) or in a Person (including, without limitation, in a foreign Person) which constitutes a minority equity interest in such Person provided that such Investments do not exceed $50,000,000 for any defaulted Indebtedness single Investment or other liability owed to $125,000,000 in the Company aggregate for all such Investments at any time outstanding, unless, in each case, the Payment Conditions are satisfied; and provided further that for purposes of calculation, the amount of any Investment shall be the aggregate cash Investment less all cash returns, cash dividends and cash distributions (or the fair market value of any non-cash returns, dividends and distributions) received by such Loan Party from such Subsidiary, joint venture or Person;
(h) Permitted AcquisitionsInvestments by a Loan Party Borrower in another Loan Party;
(i) Swap Agreements Commissions, loans or advances to employees for the purpose of travel, entertainment or relocation in the ordinary course of business and consistent with past practices, provided that the aggregate amount thereof outstanding at any one time shall not, if not entered into for speculative purposesrepaid, be reasonably expected to have a Material Adverse Effect;
(j) Investments of any Person that becomes a Loan Party in a Permitted Acquisition, which Investments are existing at the time such Person becomes a Loan Party (other than Investments incurred solely in contemplation of such Person’s becoming a Loan Party) and which are set forth in the Information Certificate delivered in connection with such Permitted Acquisition, to the ownership, development, leasing, acquisition, construction or improvement extent such investments would not be permitted under any other clause of the Corporate Headquarters;this Section; and
(k) other Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 60,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07outstanding.
Appears in 1 contract
Samples: Credit Agreement (Brown Shoe Co Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will Borrowers shall not, and will shall not permit any other member of its Subsidiaries the Borrower Affiliated Group to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any [capital stockstock]Equity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or (each of the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesforegoing, exceptan “Investment”), except for:
(a) Permitted Investments;Acquisitions and Permitted Foreign Acquisitions; 92[92]
(b) investments by the Company or a Subsidiary in the capital stock of its SubsidiariesPermitted Investments;
(c) loans or advances made by Investments existing on the Company toSecond Amendment Effective Date, and Guarantees by set forth on Schedule [6.4]6.4, to the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or extent such investments would not be permitted under any other Subsidiaryclause of this Section;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide bankruptcy or reorganization of, or settlement of any defaulted Indebtedness or other liability owed to delinquent accounts and disputes with, customers and suppliers, in each case in the Company or any Subsidiaryordinary course of business;
(he) Permitted Acquisitions;
Investments by a Borrower [in such Borrower’s Subsidiaries]or another member of the Borrower Affiliated Group in any Subsidiary of a member of the Borrower Affiliated Group, provided, however, that[ (i) Swap Agreements the aggregate amount of] Investments [in]made by Borrowers or Facility Guarantors in (i) Domestic Subsidiaries which are not entered into for speculative purposes;
(j) Investments in connection wholly-owned and which are not Borrowers or Facility Guarantors hereunder, when combined with the ownershipamount of Indebtedness set forth in Section [6.1(c)]6.1(c)(i), developmentshall not at any one time exceed $25,000,000 for any such Subsidiary and $100,000,000 in the aggregate from and after the Second Amendment Effective Date (net of any dividends, leasingdistributions, acquisitionreturns of capital or repayment of indebtedness by such Subsidiaries to Borrowers or Facility Guarantors) unless the Payment Conditions are met at the time such Investment is made, construction or improvement of and (ii)[ the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount of Investments in] Foreign Subsidiaries, when combined with the amount of Indebtedness due from Foreign Subsidiaries set forth in Section [6.1(c)]6.1(c)(ii), may not at any time exceed (net of any dividends, distributions, returns of capital or repayment of indebtedness by Foreign Subsidiaries to exceed the greater of Borrowers or Facility Guarantors) (i) $100,000,000 and 125,000,000 per annum or (ii) 2.75% of Total Assets (determined $500,000,000 in the aggregate from and after the Second Amendment Effective Date unless the Payment Conditions are met at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment is made, and after giving effect further provided in each case that [(including giving effect on a pro forma basisA) thereto (i) ]no [Default or ]Event of Default has occurred and is continuing or would occur result from such Investment[, and (iiB) immediately after giving effect to such Investment and on a pro forma basis for a period of ninety (90) days thereafter, Excess Availability shall be not less than $80,000,000; ];
(f) contributions of Equity Interests made by a Borrower or Facility Guarantor to another member of the Company Borrower Affiliated Group; provided that such Equity Interests are in an entity that is not a Borrower or Facility Guarantor;
(g) [(f) ]Guarantees by a Borrower or Facility Guarantor of Indebtedness and other obligations of another Borrower or Facility Guarantor; and
(h) [(g) ]loans or advances to employees for the purpose of travel, entertainment or relocation in compliance the ordinary course of business and consistent with Section 6.07past practices, not exceeding $1,000,000 in the aggregate at any time outstanding; provided, that no such advances to any single employee shall exceed $250,000 in the aggregate at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (GameStop Corp.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Holding Company will not, and nor will not it permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, or make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(bi) capital investments by the Holding Company or any Subsidiary in any Subsidiary (provided that such latter Subsidiary is in existence on the Third Amendment Effective Date or becomes a Subsidiary at any time after such date in the capital stock a manner that complies with all other provisions of its Subsidiariesthis Agreement, without giving effect to this clause (b)) and (ii) other existing investments and loans as otherwise described in Schedule 6.5(b);
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations ofHolding Company, the Company or any other Wholly-Owned Subsidiary to the Holding Company, the Company or any Wholly-Owned Subsidiary;
(d) Guarantees constituting Indebtedness loans and advances to, purchases of equity interests in and contributions to the capital of Joint Ventures and other Persons not otherwise Exhibit A-7 permitted by this Section 6.016.5; provided that the aggregate amount of such investments, plus the aggregate amount of the obligations guaranteed pursuant to Section 6.2(h)(y), shall not exceed $30,000,000 at any one time (it being understood that profits and losses of Joint Ventures that are passed through to its equity holders shall not be included in the calculation of the aggregate amount of such investments);
(e) advances investments in evidences of Indebtedness representing amounts formerly constituting accounts receivable owed to the Holding Company or loans made any Subsidiary in the ordinary course of business to employees of the Company and its Subsidiariesbusiness;
(f) Investments existing on the Effective Date not otherwise Guarantees permitted under this AgreementSection 6.2;
(g) Investments received Acceptable Acquisitions so long as either (i) the Leverage Ratio as of the time immediately after giving effect to such Acceptable Acquisition would be at least 0.50 to 1.00 less than the maximum ratio required under Section 6.1(b) for the end of the Fiscal Quarter during which the Acceptable Acquisition is made or (ii) the aggregate consideration paid in connection with the bona fide settlement respect of all Acceptable Acquisitions made in any defaulted Indebtedness or other liability owed to the Company or any SubsidiaryFiscal Year does not exceed $20,000,000;
(h) Permitted Acquisitions;Intercompany Loans made to the Holding Company, the Company or any Wholly-Owned Subsidiary by the Holding Company, the Company or any Wholly-Owned Subsidiary; and
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with loans by Big O or its Wholly-Owned Subsidiaries to Big O franchisees, provided that the ownership, development, leasing, acquisition, construction or improvement aggregate principal amount of such loans arising after the date hereof plus the aggregate amount of the Corporate Headquarters;
(kobligations guaranteed pursuant to Section 6.2(e) Investments in joint ventures in an aggregate amount not to exceed the greater at no time exceeds $30,000,000. For purposes of this clause (i) $100,000,000 and (ii) 2.75% investments in evidences of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments Indebtedness permitted under clauses clause (a) through (je) of this Section 6.04 made after 6.5 and Big O franchisee loans that have been sold to third parties shall be excluded from the Effective Date in an aggregate amount not loans and obligations required to exceed be within the $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.0730,000,000 limit."
Appears in 1 contract
Samples: Note Agreement (TBC Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and nor will not it permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Company or a Subsidiary Borrower in the capital stock Equity Interests of its Subsidiariesany Restricted Subsidiary;
(c) loans or advances made investments by the Company to, and Guarantees by the Company Borrower or Guarantor consisting of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;intercompany Indebtedness permitted under Section 7.01(c)
(d) Guarantees constituting Indebtedness permitted by Section 6.017.01;
(e) advances or loans investments by the Borrower and its Restricted Subsidiaries that are (1) customary in the oil and gas business, (2) made in the ordinary course of business to employees of the Company Borrower's or such Restricted Subsidiary's business, and its Subsidiaries(3) made in the form of, or pursuant to, oil, gas and mineral leases, operating agreements, farm-in agreements, farm-out agreements, development agreements, unitization agreements, joint bidding agreements, services contracts and other similar agreements that a reasonable and prudent oil and gas industry owner or operator would find acceptable;
(f) Investments existing on investments consisting of Swap Agreements to the Effective Date not otherwise extent permitted under this Agreement;Section 7.05; and
(g) Investments received in connection other investments by the Borrower and the Restricted Subsidiaries; provided that, on the date any such other investment is made, the amount of such investment, together with the bona fide settlement of any defaulted Indebtedness or all other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered investments made pursuant to Section 5.01(a) or this clause (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (jg) of this Section 6.04 made after 7.04 (in each case determined based on the cost of such investment) since the Effective Date Date, does not exceed in an aggregate amount not to exceed the aggregate, $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.0710,000,000.
Appears in 1 contract
Samples: Credit Agreement (EXCO Partners, LP)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger or consolidationmerger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investmentscash investments under the Hurco Deferred Compensation Plan made pursuant to the related trust agreements;
(b) investments in existence on the Closing Date and described on Schedule 7.04;
(c) Permitted Investments;
(d) Investments by the Company or a Subsidiary existing on the Closing Date in the capital stock Equity Interests of its Subsidiaries;
(ce) loans or advances made by the Company to, to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company or any other Subsidiary;
(df) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement7.01;
(g) Investments received investments made after the Closing Date comprised of capital contributions (whether in connection with the bona fide settlement form of any defaulted Indebtedness cash, a note or other liability owed assets), up to $10,000,000 in the Company aggregate, to new or any Subsidiaryexisting Subsidiaries;
(h) Permitted Acquisitions;
the Company or any Subsidiary may make any Acquisition so long as (i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownershipCompany or such Subsidiary, developmentas the case may be, leasingshall be the survivor of such Acquisition, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% the Acquisition is of Total Assets (determined at the time or with a Person engaged in a line of each such investment by reference business similar to the lines of business presently engaged in by the Company’s financial statements most recently delivered pursuant to Section 5.01(a, which include the manufacturing of machine tools, development of software for machine tools and distribution of machine tools, or a line of business that reasonably would be considered an ordinary extension of any such line of business presently engaged in by the Company, (iii) the Acquisition is consensual and not hostile or contested, (biv) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment both immediately before and after giving effect (including giving effect on a pro forma basis) thereto (i) to such Acquisition, no Default or Event of Default has shall have occurred and is be continuing or would occur result therefrom and the representations and warranties contained in this Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the date thereof (both before and after such Acquisition is consummated), (v) as soon as available, and in any event not later than a date that provides the Lender a reasonable amount of time prior to the proposed date of consummation of such Acquisition to complete its review, the Company shall have furnished to the Lender such agreements, documents and information relating to the Acquisition, including without limitation pro forma covenant calculations demonstrating covenant compliance as of the last day of the most recently ending fiscal quarter after taking into account such Acquisition, and evidence of such authorizations and consents with respect to the Acquisition and the requirements of the Loan Documents and the Lender in connection therewith, as the Lender may reasonably request, all in form, substance and detail satisfactory to the Lender (collectively, the “Acquisition Documents”), (vi) neither the Company nor any of its Subsidiaries shall, as a result of or in connection with such Acquisition, assume or incur any direct or contingent liabilities (whether relating to environmental, tax, litigation, or other matters) that could reasonably be expected to have a Material Adverse Effect, (vii) neither the Company nor any of its Subsidiaries shall, as a result of or in connection with such Acquisition, assume or incur any direct or contingent liabilities (whether relating to environmental, tax, litigation, or other matters) that could reasonably be expected to have a Material Adverse Effect, (viii) immediately before and after the consummation of such Acquisition, the sum of the unused amount of the Commitment plus the Company’s cash on hand as demonstrated to the Lender to its reasonable satisfaction shall be not less than $10,000,000, and (iiix) concurrently with the consummation of such Acquisition (or such later time as agreed by the Lender in its sole discretion), the Company is and its Subsidiaries, including without limitation each such Subsidiary acquired or created in compliance connection with Section 6.07such Acquisition, shall comply with all of the requirements of this Agreement and the other Loan Documents, including without limitation causing to be executed and/or delivered at such time all agreements and other documents of the types required under Sections 4.01, 6.09 and 6.10 of this Agreement; and
(i) to the extent constituting an investment, any liability of the Netherlands Borrower arising under a declaration of joint and several liability (hoofdelijke aansprakelijkheid) as referred to in section 2:403 of the DCC (and any residual liability (overblijvende aansprakelijkheid) under such declaration arising pursuant to section 2:404 (2) DCC).
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Holding Company will not, and nor will not it permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, or make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(bi) capital investments by the Holding Company or any Subsidiary in any Subsidiary (provided that such latter Subsidiary is in existence on the Third Amendment Effective Date or becomes a Subsidiary at any time after such date in the capital stock a manner that complies with all other provisions of its Subsidiariesthis Agreement, without giving effect to this clause (b)) and (ii) other existing investments and loans as otherwise described in Schedule 6.5(b);
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations ofHolding Company, the Company or any other Wholly-Owned Subsidiary to the Holding Company, the Company or any Wholly-Owned Subsidiary;
(d) Guarantees constituting Indebtedness loans and advances to, purchases of equity interests in and contributions to the capital of Joint Ventures and other Persons not otherwise permitted by this Section 6.016.5; provided that the aggregate amount of such investments, plus the aggregate amount of the obligations guaranteed pursuant to Section 6.2(h)(y), shall not exceed $30,000,000 at any one time (it being understood that profits and losses of Joint Ventures that are passed through to its equity holders shall not be included in the calculation of the aggregate amount of such investments);
(e) advances investments in evidences of Indebtedness representing amounts formerly constituting accounts receivable owed to the Holding Company or loans made any Subsidiary in the ordinary course of business to employees of the Company and its Subsidiariesbusiness;
(f) Investments existing on the Effective Date not otherwise Guarantees permitted under this AgreementSection 6.2;
(g) Investments received Acceptable Acquisitions so long as either (i) the Leverage Ratio as of the time immediately after giving effect to such Acceptable Acquisition would be at least 0.50 to 1.00 less than the maximum ratio required under Section 6.1(b) for the end of the Fiscal Quarter during which the Acceptable Acquisition is made or (ii) the aggregate consideration paid in connection with the bona fide settlement respect of all Acceptable Acquisitions made in any defaulted Indebtedness or other liability owed to the Company or any SubsidiaryFiscal Year does not exceed $20,000,000;
(h) Permitted Acquisitions;Intercompany Loans made to the Holding Company, the Company or any Wholly-Owned Subsidiary by the Holding Company, the Company or any Wholly-Owned Subsidiary; and
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with loans by Big O or its Wholly-Owned Subsidiaries to Big O franchisees, provided that the ownership, development, leasing, acquisition, construction or improvement aggregate principal amount of such loans arising after the date hereof plus the aggregate amount of the Corporate Headquarters;
(kobligations guaranteed pursuant to Section 6.2(e) Investments in joint ventures in an aggregate amount not to exceed the greater at no time exceeds $30,000,000. For purposes of this clause (i) $100,000,000 and (ii) 2.75% investments in evidences of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments Indebtedness permitted under clauses clause (a) through (je) of this Section 6.04 made after 6.5 and Big O franchisee loans that have been sold to third parties shall be excluded from the Effective Date in an aggregate amount not loans and obligations required to exceed be within the $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.0730,000,000 limit."
Appears in 1 contract
Samples: Note Purchase Agreement (TBC Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Domestic Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Company or a Subsidiary Domestic Borrower and the Subsidiaries existing on the Effective Date in the capital stock of its SubsidiariesEquity Interests in their respective subsidiaries;
(c) loans or advances made by to employees not exceeding $1,000,000 in the Company to, and Guarantees by the Company of obligations of, aggregate at any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiaryone time outstanding;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in a transaction permitted under Section 6.03(a), and the ordinary course of business to employees of the Company and its SubsidiariesSecuritization Transactions;
(f) Investments existing on other acquisitions and investments in joint ventures not exceeding, in the Effective Date not otherwise permitted under this Agreementaggregate (for all such acquisitions and investments by the Domestic Borrower and all Subsidiaries) $20,000,000 in any fiscal year;
(g) Investments received in connection Intercompany Debt, subject to compliance with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;Section 5.10; and
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction loans or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment advances by reference a Subsidiary to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) Domestic Borrower , provided the resulting Indebtedness has no priority in right of payment over any Indebtedness hereunder or (b) or, if prior to under any Designated Swap Agreement. Notwithstanding the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b)foregoing exceptions, the most recent financial statements referred Domestic Borrower will not permit Delta RHI to in Section 3.04(a));
(l) Investments, in addition to Investments have or hold any asset of any kind other than as is permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.075.10(c).
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Wholly Owned Subsidiary prior to such merger or consolidationmerger) any capital stock, Equity Interests in or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person (other than inventory acquired in the ordinary course of business) constituting a business unit or all or substantially all of the rights property and assets or business of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesanother Person, except:
(a) Permitted Investments;
(b) investments Investments by the Company or and any Restricted Subsidiary and Permitted Foreign Investments by any Foreign Subsidiary that is a Restricted Subsidiary, to the extent such Permitted Foreign Investments are either (i) generated by a Foreign Subsidiary organized in the same jurisdiction of organization of the commercial bank with which such Investment is maintained or (ii) consist of capital stock contributions made to such Foreign Subsidiary for the purpose of its Subsidiaries;
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made operations in the ordinary course of business to employees of the Company and its Subsidiariesbusiness;
(fb) Investments existing on the Effective Date not otherwise permitted under this Agreementand set forth on Schedule 6.04;
(gc) Investments received existing on the Effective Date in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any SubsidiaryRestricted Subsidiaries;
(hd) Permitted Acquisitionsadditional Investments in Persons that, immediately prior to such investments, are Restricted Subsidiaries;
(ie) Swap Agreements Investments by any Restricted Subsidiary that is not entered into for speculative purposesa Loan Party in any other Restricted Subsidiary that is not a Loan Party;
(jf) Investments consisting of all the issued and outstanding capital stock, or all or substantially all the assets, of Persons engaged in connection with the ownership, development, leasing, acquisition, construction or improvement lines of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of business permitted under Section 6.03(b); provided that (i) $100,000,000 no Default shall have occurred and be continuing at the time any such Investment is made or would occur as a result thereof, and (ii) 2.75% of immediately after giving effect to such Investment, the Total Assets (determined Leverage Ratio on a Pro Forma Basis shall not exceed the then applicable Total Leverage Ratio pursuant to Section 6.16; provided, further, that if the Total Leverage Ratio on a Pro Forma Basis shall be greater than 0.5x less than the then applicable Total Leverage Ratio pursuant to Section 6.16 immediately after giving effect to such Investment, such Investment shall be paid for with cash consideration only in an amount, when combined with the aggregate cash consideration for all other Investments made at times when the time of each such investment by reference Total Leverage Ratio on a Pro Forma Basis is greater than 0.5x less than the then applicable Total Leverage Ratio pursuant to Section 6.16 for the Company’s most recently ended Test Period for which financial statements most recently have been delivered pursuant to Section 5.01(a) or (b) ordoes not exceed $100,000,000 in the aggregate over the term of this Agreement;
(g) Guarantees constituting Indebtedness permitted by Section 6.01; provided that a Restricted Subsidiary shall not Guarantee any Subordinated Indebtedness;
(h) Investments received in connection with the bankruptcy or reorganization of, if prior or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(i) accounts receivable arising in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary at the time it becomes a Subsidiary in a transaction permitted by this Section 6.04;
(k) reasonable advances to the date officers and employees of the delivery Company and any Restricted Subsidiary for travel arising in the ordinary course of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))business;
(l) Investmentsloans to officers and employees of the Company or any Restricted Subsidiary, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 1,000,000 in the aggregate at any one time outstanding in any Person or Personsoutstanding;
(m) Investments promissory notes and other noncash consideration received by the Company and its Restricted Subsidiaries in connection with any asset sale permitted hereunder;
(n) advances in the form of prepayments of expenses, so long as prior to making such Investment expenses were incurred in the ordinary course of business and after giving effect are paid in accordance with customary trade terms of the Company or any of its Restricted Subsidiaries;
(including giving effect on a pro forma basiso) thereto Guarantees by the Company of obligations of Restricted Subsidiaries incurred in the ordinary course of business and not constituting Indebtedness;
(ip) the SCS Acquisition; and
(q) other Investments made by the Company or any Restricted Subsidiary at times when no Default or Event of Default has shall have occurred and is be continuing or would occur as a result thereof and that, taken together with all other investments made after the Effective Date under this clause (q) would not exceed the greater of (i) $25,000,000 and (ii) twenty-five percent (25%) of Consolidated EBITDA for the most recently ended Test Period for which financial statements of the Company have been delivered (or were required to be delivered) as required by this Agreement at the time such Investment is made. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in compliance with Section 6.07the value of such Investment.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
(c) investments by the Company or a Subsidiary Borrower and its Subsidiaries existing on the date hereof in the capital stock of its Subsidiaries, and investments, loans, advances, or guarantees made by Loan Parties to or in respect of Subsidiaries that are not Loan Parties as set forth in Schedule 6.04(c);
(cd) investments, loans or advances made by the Company to, and Guarantees by the Company of obligations of, Borrower in or to any Subsidiary, or any guaranty of Indebtedness of such Subsidiary, and made by any Subsidiary in or to the Borrower or any other Subsidiary (including any guaranty by such Subsidiary); provided that the aggregate amount of investments, loans, advances, guarantees or capital contributions made by Loan Parties to or in respect of Subsidiaries that are not Loan Parties shall not exceed the aggregate amount set forth in Schedule 6.04(c) for those investments, loans, advances and guarantees in effect as of the Effective Date, plus $11,000,000 (with accrued and unpaid interest being excluded from such determination); provided however that (i) for a single period of six consecutive months during the term of this Agreement selected by Borrower (such period the “Additional Investment Period”), such $11,000,000 limitation shall be increased to $22,000,000 (such increase, the “Additional Investment Amount”), it being understood and agreed that after the Additional Investment Period, the aggregate outstanding amount of investments, loans or advances made by any Subsidiary tothe Borrower pursuant to this clause (d) shall not exceed the aggregate amount set forth in Schedule 6.04(c) for those investments, loans, advances and Guarantees by any Subsidiary guarantees in effect as of obligations ofthe Effective Date, plus $11,000,000 and (ii) the Company or any other SubsidiaryAdditional Investment Amount shall be used solely in connection with an International Transaction;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) investments consisting of (x) loans and advances to employees of the Borrower or loans made its Subsidiaries for reasonable travel, relocation and business expenses in the ordinary course of business, (y) accounts receivable of the Borrower or any Subsidiary thereof created or acquired in the ordinary course of business and related to employees non-Affiliates, and (z) prepaid expenses of the Company and Borrower or its Subsidiaries;
(f) Investments existing on Subsidiaries incurred in the Effective Date not otherwise permitted under this Agreementordinary course of business;
(g) Investments investments (including those constituting Indebtedness) of the Borrower or any Subsidiary thereof received in connection with the bona fide bankruptcy or reorganization of suppliers and customers and in settlement of any defaulted Indebtedness or delinquent obligation of, and other liability owed to disputes with, customers and suppliers arising in the Company or any Subsidiaryordinary course of business;
(h) Permitted Acquisitionsinvestments under Swap Agreements permitted under Section 6.05;
(i) Swap Agreements not entered into for speculative purposes;investments in connection with the International Transaction; and
(j) Investments in connection with the ownershipany other investment, development, leasing, acquisition, construction loan or improvement of the Corporate Headquarters;
advance (kother than acquisitions) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i1) no Default or Event of Default has occurred and is continuing then outstanding or would occur result therefrom and (ii2) the Company is in compliance with Section 6.07aggregate amount of all such investments, loans and advances does not exceed $5,500,000 at any time outstanding during the term of this Agreement.
Appears in 1 contract
Samples: Senior Subordinated Credit Agreement (Symmetry Medical Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company It will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness Investment in or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments Investments by the Company or a MLP and any Restricted Subsidiary in the capital stock Equity Interests of its Subsidiariesany Restricted Subsidiary;
(c) loans or advances made by the Company to, MLP to any Restricted Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Restricted Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company MLP or any other Restricted Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made the Borrower’s interest in the ordinary course of business to employees of the Company and its SubsidiariesST Linden Terminal, LLC;
(f) Investments existing on the Effective Date not purchase or other acquisition by the MLP or a Restricted Subsidiary of the assets of another Person constituting all or substantially all of the property and assets or business of another Person or assets that constitute a business unit, line of business or division of another Person, or the purchase or other acquisition by the MLP or a Restricted Subsidiary of all or substantially all of the Equity Interests in any Person, that immediately upon the consummation thereof, will be a Restricted Subsidiary (including, without limitation, as a result of a merger or consolidation otherwise permitted under this Agreement); provided, that, both before and after giving effect to any such Investment, no Default shall exist, including, without limitation, a Default with respect to use of proceeds set forth in Section 5.08, and the MLP shall be in Pro Forma Compliance;
(g) Investments received in connection Joint Venture Interests and Unrestricted Subsidiaries; provided, that, both before and after giving effect to any such Investment, no Default shall exist, including, without limitation, a Default with respect to use of proceeds set forth in Section 5.08, and the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any SubsidiaryMLP shall be in Pro Forma Compliance;
(h) Investments in Swap Agreements other than Permitted Acquisitions;Swap Agreements; provided, that, both before and after giving effect to any such Investment, no Default shall exist, including, without limitation, a Default with respect to use of proceeds set forth in Section 5.08, and the MLP shall be in Pro Forma Compliance; provided further that the aggregate amount of Investments made pursuant to this clause (h) shall not exceed $100,000,000 in the aggregate at any time; and
(i) Swap Agreements Guarantees of obligations not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement constituting Indebtedness of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07Restricted Subsidiaries.
Appears in 1 contract
Samples: 5 Year Revolving Credit Agreement (NuStar Energy L.P.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences Equity Interests in or evidence of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted InvestmentsCash and Cash Equivalents;
(b) the Company’s short-term investment in Columbia Strategic Cash Portfolio, a series of Columbia Qualified Purchaser Funds, LLC and the other investments existing on the date hereof and set forth on Schedule 6.04 and any other investments from time to time not to exceed at any time outstanding an aggregate principal amount in excess of the Net Proceeds received from the disposition of investments permitted by this Section 6.04(b);
(c) investments by the Company or and its Subsidiaries in Equity Interests in their respective Subsidiaries; provided that (i) any such Equity Interests held by a Subsidiary in Loan Party shall be pledged pursuant to the capital Pledge Agreement (excluding the common stock of its Subsidiariesany Foreign Subsidiary), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Subsidiaries that are not Loan Parties (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $20,000,000 at any time outstanding and (iii) neither the Company nor any of the Subsidiaries will create or acquire any Subsidiary after the Effective Date that is not a Loan Party;
(cd) loans or advances made by the Company to, to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company or any other Subsidiary; provided that the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c) above;
(de) Guarantees constituting Indebtedness permitted by Section 6.01; provided that the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c) above;
(ef) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementbusiness;
(g) Investments non-cash consideration received in connection with the bona fide settlement sale, transfer, lease or disposition of any defaulted Indebtedness or other liability owed to the Company or any Subsidiaryasset in compliance with Sections 6.05 and 6.06;
(h) Permitted Acquisitions;
other investments made after the Effective Date; provided that at any time there is any outstanding Exposure hereunder, (i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount of such investments plus the aggregate amount of Restricted Payments made pursuant to Section 6.08(a)(i) shall not to exceed $150,000,000 in the greater of (i) $100,000,000 aggregate and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment immediately before and after giving effect to the making of any such Investments, (including giving effect on a pro forma basisA) thereto Excess Availability shall be in an amount greater than twenty percent (i20%) of the Tranche A-1 Borrowing Base (or, if the Tranche A-1 Commitments have been terminated, the Tranche A Borrowing Base) then in effect, and (B) no Default or Event of Default has occurred and is continuing or would occur continuing; and
(i) earn-outs and (ii) the Company is in compliance with Section 6.07other customary post-disposition obligations arising out of Permitted Divestitures.
Appears in 1 contract
Samples: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and nor will not it permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Company or a Subsidiary Borrower in the capital stock Equity Interests of its Subsidiariesany Restricted Subsidiary;
(c) loans or advances made investments by the Company to, and Guarantees by the Company Borrower or Guarantor consisting of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiaryintercompany Indebtedness permitted under Section 7.01(c);
(d) Guarantees constituting Indebtedness permitted by Section 6.017.01;
(e) advances or loans investments by the Borrower and its Restricted Subsidiaries that are (1) customary in the oil and gas business, (2) made in the ordinary course of business to employees of the Company Borrower’s or such Restricted Subsidiary’s business, and its Subsidiaries(3) made in the form of, or pursuant to, oil, gas and mineral leases, operating agreements, farm-in agreements, farm-out agreements, development agreements, unitization agreements, joint bidding agreements, services contracts and other similar agreements that a reasonable and prudent oil and gas industry owner or operator would find acceptable;
(f) Investments existing on investments consisting of Swap Agreements to the Effective Date not otherwise extent permitted under this AgreementSection 7.05;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiaryinvestments permitted under Section 7.03;
(h) Permitted Acquisitionsinvestments by EOC consisting of cash contributions to the BG Escrow Account in accordance with the terms and conditions of the BG Joint Development Agreement;
(i) Swap Agreements not entered into for speculative purposescash equity investments by the Borrower and the Restricted Subsidiaries in EBG Acquisition in an aggregate amount of up to $250,000,000; provided that (i) the proceeds of such investment are applied to the purchase of 100% of the Equity Interests in Common Resources and (ii) at the time of and immediately after giving effect to such investment, no Default exists or would be caused thereby;
(j) Investments investments by the Borrower and the Restricted Subsidiaries in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date EBG Acquisition in an aggregate amount not to exceed $500,000,000 75,000,000 at any time; provided that, (i) at the time outstanding of and immediately after giving effect to such investment, no Default exists or would be caused thereby, (ii) the proceeds of such investment are used by such Unrestricted Subsidiaries to pay drilling, operating and development costs incurred by such Unrestricted Subsidiaries or any wholly-owned Subsidiary of such Unrestricted Subsidiaries and (iii) as of any date of determination, the aggregate amount of such investments shall be the excess of (A) the aggregate amount of all investments made pursuant to this clause (j) of Section 7.04 since the Effective Date to and including such date of determination, over (B) the sum of (1) the Aggregate Specified Value plus (2) the aggregate amount of all cash distributions made to any Credit Party by such Unrestricted Subsidiaries as of such date of determination; provided that the amount calculated pursuant to the foregoing clause (iii) shall not be less than zero at any time;
(k) cash equity investments by the Borrower and the Restricted Subsidiaries in TGGT Holdings or any Person of its Subsidiaries; provided that, (i) at the time of and immediately after giving effect to any such investment, no Default exists or Personswould be caused thereby and (ii) the amount of such investments do not exceed for any fiscal year, $100,000,000 in the aggregate;
(l) [Intentionally Omitted];
(m) Investments so long as prior to making such Investment cash equity investments by the Borrower and the Restricted Subsidiaries in the Xxxxxxxxx XX Operator or any of its Subsidiaries; provided that, (i) at the time of and immediately after giving effect (including giving effect on a pro forma basis) thereto (i) to any such investment, no Default or Event of Default has occurred and is continuing exists or would occur be caused thereby and (ii) the Company amount of such investments do not exceed in the aggregate, $10,000,000 in any fiscal year; and
(n) cash equity investments by the Borrower and the Restricted Subsidiaries in the Marcellus Midstream Owner or any of its Subsidiaries; provided that, (i) at the time of and immediately after giving effect to any such investment, no Default exists or would be caused thereby and (ii) the amount of such investments do not exceed in the aggregate, $50,000,000 in any fiscal year; and
(o) other investments by the Borrower and the Restricted Subsidiaries; provided that, on the date any such other investment is made, the amount of such investment, together with all other investments made pursuant to this clause (o) of Section 7.04 (in compliance with Section 6.07each case determined based on the cost of such investment) since the Effective Date, does not exceed in the aggregate, $10,000,000.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
(c) investments by the Company or a Subsidiary Borrower and its Subsidiaries existing on the date hereof in the capital stock of its Subsidiaries;
(cd) investments, loans or advances made by the Company to, Borrower in or to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, in or to the Company Borrower or any other SubsidiarySubsidiary (provided that not more than an aggregate amount of $250,000,000 in investments, loans or advances or capital contributions may be made and remain outstanding, at any time, by the Borrower or any wholly-owned Subsidiary to Subsidiaries which are not wholly-owned Subsidiaries);
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;; and
(f) Investments existing on investments by the Effective Date not otherwise permitted under this AgreementBorrower and its Subsidiaries in connection with ON-Line and NV Energize; and;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness other investment, loan or advance (other liability owed to the Company or any Subsidiary;
(hthan acquisitions) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making the aggregate amount of all such Investment investments, loans and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event advances does not exceed $100,000,000 during the term of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07this Agreement.
Appears in 1 contract
Samples: Loan Agreement (Nv Energy, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions, the acquisition of assets of Microsulis Medical Limited and its parent company UK Investment Associates, LLC and the Neptune Acquisition;
(c) investments by the Company or a Subsidiary Borrower and its Subsidiaries existing on the date hereof in the capital stock of its Subsidiaries;
(cd) investments, loans or advances made by the Company to, Borrower in or to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, in or to the Company Borrower or any other SubsidiarySubsidiary (provided that not more than an aggregate amount of $10,000,000 in investments, loans or advances or capital contributions may be outstanding, at any time, by Loan Parties to Subsidiaries which are not Loan Parties);
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) the Borrower and its Subsidiaries may enter into Sale and Leaseback Transactions permitted by Section 6.10;
(g) investments, loans or advances constituting installment sales of equipment;
(h) investments in securities of trade creditors or loans made customers in the ordinary course of business to employees of and consistent with the Company and its Borrower’s or such Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments ’ past practices that are received in connection with the settlement of bona fide settlement disputes or pursuant to any plan of any defaulted Indebtedness reorganization or other liability owed to liquidation or similar arrangement upon the Company bankruptcy or any Subsidiary;
(h) Permitted Acquisitionsinsolvency of such trade creditors or customers;
(i) Swap Agreements not entered into for speculative purposesinvestments consisting of licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(j) Investments investments consisting of promissory notes and other non-consideration received in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquartersany asset sale permitted by Section 6.03;
(k) Investments investments in joint ventures connection with the purchase, cancellation, or repayment of any existing industrial revenue bonds or industrial revenue bonds acquired in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))a Permitted Acquisition;
(l) Investments, Swap Agreements entered into for the purpose of hedging or to mitigate risk to which the Borrower or any Subsidiary is exposed to in addition to Investments permitted under clauses (a) through (j) the conduct of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;its business; and
(m) Investments any other investment, loan or advance (other than acquisitions) so long as prior to the aggregate amount of all such investments, loans and advances does not exceed $10,000,000 outstanding at any time; provided that such Dollar limitation shall not be applicable if at the time of the making of such Investment investment, loan or advance and immediately after giving effect (including giving effect on a pro forma basis) thereto thereto, (i) no Default the Leverage Ratio is equal to or Event of Default has occurred and is continuing or would occur less than (A) (x) the maximum ratio permitted under Section 6.12(a) during such fiscal quarter, minus (y) 0.50 to (B) 1.00 and (ii) the Company is in compliance with Section 6.07Borrower shall have Liquidity equal to or greater than $50,000,000.
Appears in 1 contract
Samples: Credit Agreement (Angiodynamics Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, (i) purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or (ii) purchase or otherwise acquire (in one transaction or a series of transactions) substantially all the assets of any Person or any assets of any other Person constituting a business unit or the unit, division, product line (including rights in respect of any licensee under drug or other pharmaceutical product) or line of business of such Person, or (iii) acquire an exclusive long-term license of rights to a trademark license to such licensee from the Company drug or other product line of any of its AffiliatesPerson, or (iv) make a Restricted Milestone Payment (each, an “Investment”) except:
(a) cash and Permitted Investments;
(b) investments by Permitted Acquisitions and the Company or a Subsidiary in the capital stock of its SubsidiariesQualitest Acquisition;
(c) loans Investments by the Borrower and its Subsidiaries existing on the date hereof and set forth on Schedule 6.04 and any modification, replacement, renewal or advances extension thereof to the extent not involving any additional Investment;
(d) Investments made by the Company to, Borrower in or to any Subsidiary and made by any Subsidiary in or to the Borrower or any other Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans Borrower or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or of any other Subsidiary; provided that the amount of any Investment by a Loan Party to a Subsidiary which is not a Loan Party made after the Effective Date or constituting a Guarantee of obligations of any Subsidiary that is not a Loan Party made after the Effective Date shall not exceed, together with the aggregate amount of all other Investments made pursuant to this proviso, and Section 6.04(v) below, $750,000,000 at any time outstanding;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) Investments made as a result of the receipt of non-cash consideration from a sale, transfer, lease or other disposition, or an Exclusive License, of any asset in compliance with Section 6.03;
(h) Investments in the form of Swap Agreements permitted by Section 6.05;
(i) payroll, travel and similar advances to directors, officers and employees of the Borrower or loans any Subsidiary that are made in the ordinary course of business;
(j) extensions of trade credit in the ordinary course of business;
(k) Investments to the extent the consideration paid therefor consists of Equity Interests (other than Disqualified Equity Interests) of the Borrower;
(l) Investments of any Person in existence at the time such Person becomes a Subsidiary; provided such Investment was not made in connection with or anticipation of such Person becoming a Subsidiary and any modification, replacement, renewal or extension thereof;
(m) transfers of rights with respect to one or more products or technologies under development to joint ventures with third parties or to other entities where the Borrower or a Subsidiary retains rights to acquire such joint ventures or other entities or otherwise repurchase such products or technologies;
(n) any customary upfront milestone, marketing or other funding payment in the ordinary course of business to employees of another Person in connection with obtaining a right to receive royalty or other payments in the Company and its Subsidiariesfuture;
(fo) Investments existing transfers of intellectual property to Foreign Subsidiaries, the Equity Interests of which are directly owned by or on behalf of any Loan Party and are pledged to the Effective Date not otherwise permitted under this AgreementAdministrative Agent pursuant to the Collateral Documents (including any local law governed pledge agreement requested by the Administrative Agent);
(gp) Investments received in connection with Exclusive Licenses from a Foreign Subsidiary to the bona fide settlement Borrower or a Domestic Subsidiary of any defaulted Indebtedness rights to a drug or other liability owed to the Company pharmaceutical products, diagnostics, delivery technologies, medical devices or any Subsidiarybiotechnology businesses acquired by such Foreign Subsidiary in an acquisition permitted by Section 6.03;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(kq) Investments in joint ventures (including JV Subsidiaries) and acquisitions of Equity Interests that would constitute Permitted Acquisitions but for the fact that Persons in which such Equity Interests are acquired do not become wholly owned Subsidiaries of the Borrower; provided that the sum of the aggregate amount of such Investments, plus the aggregate consideration paid in all such acquisitions, made under this clause (q) after the Effective Date shall not exceed $65,000,000 at any time outstanding;
(r) Permitted Foreign Loans;
(s) Investment in Light Sciences Oncology LLC in an aggregate amount not to exceed $6,000,000 at any time outstanding;
(t) loans or advances to directors and employees of the greater Borrower or any Subsidiary made in the ordinary course of business; provided that the aggregate amount of such loans and advances outstanding, when aggregated with the Guarantees then outstanding under Section 6.01(l), at any time shall not exceed $5,000,000;
(iu) $100,000,000 and (ii) 2.75% any Investment in an aggregate amount, when aggregated with the aggregate amount of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered Restricted Payments made pursuant to Section 5.01(a) 6.07(g), not to exceed at anytime the aggregate amount of net cash proceeds received from sales or (b) or, if prior to the date issuances of Equity Interests of the delivery of Borrower (other than Disqualified Equity Interests) after the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));Effective Date; and
(lv) Investmentsany other Investment so long as the aggregate amount of all such Investments made after the Effective Date, in addition to when aggregated with the aggregate amount of Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount pursuant to Section 6.04(d) above, does not to exceed $500,000,000 750,000,000 at any time outstanding in outstanding. For purposes of clause (q) and this clause (v), the aggregate consideration payable for any Person Investment (other than a Milestone Payment) shall be the cash amount paid on or Persons;
(m) Investments so long as prior to making the consummation of such Investment and after giving effect (including giving effect on shall not include any purchase price adjustment, royalty, earnout, contingent payment or any other deferred payment of a pro forma basis) thereto (i) no Default or Event similar nature that may be payable in connection therewith. For purposes of Default has occurred and is continuing or would occur and (ii) the Company is in covenant compliance with this Section 6.076.04, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of such Investment.
Appears in 1 contract
Samples: Credit Agreement (Endo Pharmaceuticals Holdings Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Loan Parties will not, not and will not permit any of its their Subsidiaries to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, Equity Interests in or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or make upfront payments or provide other credit support for any Person or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or (each of the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesforegoing, an “Investment” and collectively, “Investments”), except:
(ai) Permitted Investments;
(bii) investments by Investments existing on the Company Effective Date (or in respect of which a Subsidiary in binding commitment to make such investment existed on the capital stock Effective Date of its Subsidiariesthis Agreement) and set forth on Schedule 6.04;
(ciii) loans Investments by Loan Parties and their Subsidiaries in Subsidiary Loan Parties or advances made the Borrower; provided that any such Investment held by a Loan Party shall be pledged pursuant to the Company to, and Guarantees by terms of the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other SubsidiaryCollateral Agreement;
(div) Investments constituting Indebtedness permitted by Sections 6.01(a)(iv), (viii) and (x);
(v) Guarantees constituting Indebtedness permitted by Section 6.016.01(a)(v);
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(gvi) Investments received in connection with the bona fide bankruptcy or reorganization of, or settlement of any defaulted Indebtedness or other liability owed to delinquent accounts and disputes with, customers and suppliers, in each case in the Company or any Subsidiaryordinary course of business;
(hvii) loans and advances to employees of Holdings and its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) not to exceed $2.0 million in the aggregate at any time outstanding;
(viii) other loans, advances and investments of the Borrower or any Subsidiary Loan Party not in excess of $10.0 million outstanding at any time;
(ix) Investments received in connection with Dispositions permitted under Section 6.03(b) and Section 6.05;
(x) accounts receivable of a Loan Party established in the ordinary course of business;
(xi) Investments out of Available Proceeds;
(xii) Permitted Acquisitions;
(ixiii) Swap Agreements not entered into for speculative purposesInvestments in Bank Equity Interests;
(jxiv) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined Cumulative Available Cash at the time of each any such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));Investment is made; and
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(mxv) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default resulting from Restricted Payments permitted by Section 6.07 or Event repurchases or redemptions of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Indebtedness permitted by Section 6.076.10(b).
Appears in 1 contract
Samples: Amendment Agreement (Consolidated Communications Holdings, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by with respect to any Foreign Subsidiary, direct obligations of, or obligations the Company principal of and interest on which are unconditionally guaranteed by, the government of the country in which such Foreign Subsidiary is organized or a Subsidiary has its principal place of business, in each case maturing within one year from the date of acquisition thereof, so long as the aggregate amount of all such obligations for all Foreign Subsidiaries does not exceed $5,000,000 in the capital stock of its Subsidiariesaggregate at any time outstanding;
(c) loans, advances or investments existing on the date hereof by the Company and the Subsidiaries to or in their respective subsidiaries;
(d) investments, loans or advances made by the Company to, in or to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company or any other SubsidiarySubsidiary (provided that not more than $10,000,000 in investments, loans or advances or capital contributions may be made and remain outstanding, during the term of this Agreement, by any Loan Party to a Subsidiary which is not a Loan Party but provided further that investments, loans, advances or capital contributions made to fund the operating expenses of Photronics China in the ordinary course of business consistent with past practice shall not be subject to the foregoing proviso);
(de) Guarantees constituting Indebtedness permitted by Section 6.016.01 and Guarantees by the Company of rental obligations or accounts payable of any Subsidiary;
(ef) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementbusiness;
(g) Investments received investments made in connection with a sale of assets permitted by Section 6.03 to the bona fide settlement extent of any defaulted Indebtedness or other liability owed to the non-cash consideration received by the Company or any a Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements Investments, loans and advances existing on the date hereof and set forth in Schedule 6.04 and extensions, renewals and replacements of any such investments, loans or advances with investments, loans or advances of a similar type that do not entered into for speculative purposesincrease the outstanding amount thereof;
(j) Investments investments by the Company or any Subsidiary made solely in connection with the ownership, development, leasing, acquisition, construction or improvement form of capital stock of the Corporate Headquarters;Company; and
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of any other investment (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (bother than acquisitions), the most recent financial statements referred loan or advance (including investments made to in Section 3.04(a));
(lmeet minimum capital requirements of foreign jurisdictions) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making the aggregate amount of all such Investment investments, loans and after giving effect advances during any fiscal year of the Company, when aggregated with the aggregate consideration (including giving effect on a pro forma basisthe concurrent repayment or assumption of any indebtedness and related investments) thereto (i) no Default or Event paid in respect of Default has occurred and is continuing or would occur and (ii) all Permitted Acquisitions during such fiscal year of the Company is in compliance with Section 6.07Company, does not exceed $25,000,000.
Appears in 1 contract
Samples: Credit Agreement (Photronics Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, without the written consent of the Administrative Agent, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) merger); any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Company or a Subsidiary Borrower in the capital stock of its Subsidiaries;
(c) loans or advances made by the Company to, Borrower to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) Permitted Acquisitions that are Non-Consent Acquisitions;
(f) investments of any Persons acquired in a Permitted Acquisition, in the capital stock of such Person’s Subsidiaries;
(g) advances in the ordinary course of business to any independent contractor performing services for Borrower, any of its Subsidiaries or any of their agents not to exceed $3,000,000.00 in the aggregate at any time outstanding maturing not later than seven (7) years after the incurrence thereof;
(h) short term loans and compensation advances to any independent contractor performing services for Borrower or for any of its agents made in the ordinary course of business that do not exceed the projected revenues to employees be paid to such independent contractor within two (2) months of such loans or advances, and, in the Company and its Subsidiaries;
(f) Investments existing on case of loans, which mature not later than two months after the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement making of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitionssuch loans;
(i) Swap Agreements loans or advances to employees of the Borrower or any Subsidiary in the ordinary course of business for travel, relocation and related expenses; provided, however, that the aggregate amount of all such loans and advances does not entered into for speculative purposesexceed $250,000.00 at any time outstanding;
(j) Investments in connection with notes and other securities received in full or partial satisfaction of overdue debts and accounts payable in the ownershipordinary course of business and for amounts which, developmentindividually or in the aggregate, leasing, acquisition, construction or improvement of the Corporate Headquartersdo not exceed $3,000,000.00 at any time outstanding;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment Swap Agreements permitted by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))6.05;
(l) Investments, Investments in addition stock of Borrower that do not exceed the amount permitted pursuant to Section 6.06(d) hereof; and
(m) other Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 3,000,000.00 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07outstanding.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliates, except:
(a) Permitted Investments;
(b) investments by the Company or a Subsidiary in the capital stock of its Subsidiaries;
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this AgreementAgreement and described in Schedule 6.04 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));; #93177127v17
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.076.07.on a pro forma basis with a maximum Net Leverage Ratio of no greater than 4.00 to 1.00, recomputed as at the last day of the most recently ended fiscal quarter of the Company for which financial statements are available, as if such Investment had occurred on the first day of each relevant period for testing such compliance;
(n) Investments of any Person existing at the time such Person becomes a Subsidiary 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 consolidation or merger, and any modification, replacement, renewal, reinvestment or extension thereof;
(o) any Investment in securities or other assets, including earn-outs, not constituting cash or Permitted Investments and received in connection with a Disposition made pursuant to the provisions of Section 6.03 or any other disposition of assets not constituting a Disposition;
(p) advances to customers or suppliers in the ordinary course of business that are, in conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the balance sheet of the Company or the Subsidiaries and endorsements for collection or deposit arising in the ordinary course of business; provided that the aggregate amount of such advances outstanding at any time shall not exceed $10,000,000;
(q) Investments consisting of the licensing or contribution of Intellectual Property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business; and
(r) Investments consisting of opening and closing stores and purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of Intellectual Property, in each case in the ordinary course of business. Notwithstanding anything herein to the contrary, during the Covenant Relief Period, the Company and its Subsidiaries shall not be permitted to make any Investments pursuant to Section 6.04(h), (k), (l) or (m), other than Investments in an aggregate amount not to exceed $150,000,000.
Appears in 1 contract
Samples: Credit Agreement (Tapestry, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stockEquity Interests, evidences of indebtedness Indebtedness or other securities (including other than any option, warrant or other right to acquire any Hedging Agreement entered into in the ordinary course of the foregoingbusiness) of, make or permit to exist any loans or advances (excluding accounts receivable arising out of the sale of goods and services reflected on the Company’s consolidated balance sheet as current assets) to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(bi) investments existing on the date hereof in the capital stock of Subsidiaries or in Indebtedness of Subsidiaries and (ii) other investments existing on the date hereof and set forth on Schedule 6G;
(c) acquisitions of assets of or Equity Interests in other Persons for consideration consisting solely of common stock of the Company;
(d) (i) acquisitions of assets of or Equity Interests in other Persons that are not Affiliates of the Company if at the time of and after giving pro forma effect to each such acquisition and any related incurrence of Indebtedness, the Leverage Ratio does not exceed (A) 3.00 to 1.00 if each such acquisition and any related incurrences of Indebtedness occur on or prior to December 31, 2011, or (B) 3.50 to 1.00 in all other cases, and (ii) and loans or advances to Subsidiaries to provide funds required to effect such acquisitions;
(e) (i) any investment, loan or advance by the Company or a Guarantor in or to the Company or another Guarantor, (ii) any investment, loan or advance by a Subsidiary that is not a Guarantor in or to the capital stock Company or a Guarantor; provided that each such loan or advance referred to in this preceding clause (ii) shall be subordinated to the obligations hereunder (it being understood that any such subordination shall not be construed to create a Lien), (iii) any investment, loan or advance by any Subsidiary that is not a Guarantor in or to any other Subsidiary that is not a Guarantor and (iv) any investment, loan or advance by the Company or any Guarantor in or to any Subsidiary that is not a Guarantor; provided that each investment, loan or advance referred to in this clause (iv) must be in an outstanding principal amount that, together with the aggregate outstanding principal amount of its Subsidiaries;
all other investments, loans and advances permitted by this clause (c) iv), but net of all amounts paid by such non-Guarantor in or to the Company and/or any of the Guarantors after July 16, 2010 that constitute repayments of loans or advances made by the Company toand/or such Guarantors or returns of capital (as opposed to returns on capital) invested by the Company and/or such Guarantors, shall not exceed $100,000,000 and (v) in addition to investments, loans and advances permitted under the preceding clause (iv), any investment, loan or advance by the Company or a Guarantor to any Subsidiary that is not a Guarantor (whether directly or indirectly through one or more intervening Subsidiaries that is not a Guarantor) and the business operations of which are in China, South Korea or Brazil; provided that each investment, loan or advance referred to in the this clause (v) must be in an outstanding principal amount that, together with the aggregate outstanding principal amount of all other investments, loan and advances permitted by this clause (v), but net of all amounts paid by such non-Guarantor to the Company and/or any of the Guarantors after July 16, 2010 that constitute repayments of loans or advances made by the Company and/or such Guarantors or returns of capital (as opposed to returns on capital) invested by the Company and/or such Guarantors, shall not exceed $150,000,000;
(f) Guarantees by a Subsidiary constituting Indebtedness permitted by Paragraph 6A (provided that a Subsidiary shall not Guarantee any obligation of the Company unless such Subsidiary also becomes a Guarantor in respect of the Guarantied Obligations) and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Indebtedness of a Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this AgreementParagraph 6A;
(g) Investments received Guarantees by the Company of obligations of Albany International Holding (Switzerland) AG to Bank of America, N.A. under one or more Limited Guaranty and Indemnity Agreements substantially in connection with the bona fide settlement form of any defaulted Indebtedness or other liability owed Exhibit G to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not Revolving Credit Agreement, to be entered into for speculative purposes;
(j) Investments after the date hereof, between the Company and Bank of America, N.A. in connection with the ownership, development, leasing, acquisition, construction respect of overdrafts or improvement of the Corporate Headquarters;
(k) Investments in joint ventures currency hedging transactions in an aggregate amount not to exceed $20,000,000 at any time;
(h) investments received in connection with the greater bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference loans or other advances to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))employees consistent with past practice;
(lj) Investments, in addition to Investments any Permitted AEC Transaction; and
(k) other investments not permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date above in an aggregate amount not to exceed exceeding $500,000,000 75,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07time.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness for borrowed money or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
(c) investments by the Company or a Subsidiary Borrower in the capital stock of its Subsidiaries;
(cd) loans or advances made by the Company to(i) any Loan Party to any other Loan Party, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by (ii) any Subsidiary to, to any Loan Party and Guarantees by (iii) any Subsidiary of obligations of, the Company or that is not a Loan Party to any other SubsidiarySubsidiary that is not a Loan Party;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) other investments (excluding Hostile Acquisitions), loans and advances not otherwise permitted by this Section 6.04 so long as the aggregate outstanding principal amount thereof does not exceed 20% of Consolidated Tangible Assets as measured at the end of the most recent fiscal quarter in which such investments, loans and advances are made;
(g) investments (including, without limitation, debt obligations) and securities received (i) in connection with the bankruptcy or loans made reorganization of suppliers and customers and in good faith settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business to employees or (ii) in satisfaction of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received judgments or in connection with the bona fide settlement of any defaulted Indebtedness litigation, arbitration or other liability owed to the Company or any Subsidiary;disputes; and
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into loans and advances by the Borrower and its Subsidiaries to their officers and employees for speculative purposes;
(j) Investments in connection with the ownershipmoving, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 relocation and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investmentstravel expenses and other similar expenditures, in addition to Investments permitted under clauses (a) through (j) each case in the ordinary course of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07business.
Appears in 1 contract
Samples: Credit Agreement (Cytyc Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness Indebtedness or other securities Equity Interests (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, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesotherwise), except:
(a) Permitted Investments, subject to control agreements in favor of the Administrative Agent for the benefit of the Secured Parties or otherwise subject to a perfected security interest in favor of the Administrative Agent for the benefit of the Secured Parties except to the extent permitted to be maintained in an Excluded Account;
(b) investments by in existence on the Company or a Subsidiary date hereof and described in the capital stock of its SubsidiariesSchedule 6.04;
(c) investments by the Borrower and the 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 Agreement (subject to the limitations applicable to Equity Interests referred to in Section 5.13) and (ii) the aggregate amount of investments by Loan Parties in Subsidiaries that are not Loan Parties (together with outstanding intercompany loans permitted under clause (ii) to the proviso to Section 6.04(d) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $1,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(d) loans or advances made by the Company to, any Loan Party to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company to a Loan Party or any other Subsidiary, provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Security Agreement and (ii) the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties (together with outstanding investments permitted under clause (ii) to the proviso to Section 6.04(c) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $1,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(de) Guarantees constituting Indebtedness permitted by Section 6.01, provided that the aggregate principal amount of Indebtedness or liabilities 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 permitted under clause (ii) to the proviso to Section 6.04(d)) shall not exceed $1,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(ef) loans or advances or loans made by a Loan Party to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to employees a maximum of $250,000 in the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementaggregate at any one time outstanding;
(g) Investments notes payable, or stock or other securities issued by Account Debtors to a Loan Party pursuant to negotiated agreements with respect to settlement of such 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 of the Subsidiaries (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 Dispositions permitted by Section 6.05;
(k) investments constituting deposits described in clauses (c) and (d) of the bona fide definition of the term “Permitted Encumbrances” and Section 6.02(n), (o), and (p);
(l) Permitted Acquisitions;
(m) investments in negotiable instruments for collection in the ordinary course of business;
(n) advances made in connection with purchases of goods or services in the ordinary course of business;
(o) investments received in settlement of any defaulted Indebtedness or other liability owed delinquent obligations to the Company Borrower or any Subsidiary effected in the ordinary course of business or owing to the Borrower or any Subsidiary as a result of any bankruptcy or insolvency proceeding involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of the Borrower or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into endorsements for speculative purposes;
(j) Investments collection or deposit in connection the ordinary course of business and consistent with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 past practice and (ii) 2.75% extensions of Total Assets trade credit in the ordinary course of business;
(determined at q) investments by any Loan Party or any Subsidiary of a Loan Party in any Subsidiary of such Person in such amount which is required by law to maintain a minimum net capital requirement or as may otherwise be required by applicable law or regulation;
(r) extensions of credit consisting of accounts receivable or notes receivable arising from the time sale or lease of each such investment by reference to goods in the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date ordinary course of business of the delivery Borrower or any Subsidiary;
(s) investments (other than any Permitted Acquisition) by the Borrower or any of its Restricted Subsidiaries for which the consideration consists solely of Equity Interests of the first financial statements to be delivered pursuant to Borrower;
(t) investments permitted under Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)6.03(a);
(lu) Investmentsto the extent constituting an investment, the provision of services by Myriad Genetics GK to Myriad Genetic Laboratories, Inc. in addition to Investments permitted under clauses (a) through (j) the ordinary course of this Section 6.04 made after the Effective Date business and on terms and in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Personsa quantum substantially consistent with past practice;
(mv) Investments so long as prior transfer pricing arrangements among the Borrower and its Subsidiaries in the ordinary course of business and on terms and in a quantum substantially consistent with past practice; and
(w) any other investments (other than Acquisitions) subject to making such Investment and after giving effect (including giving effect on the satisfaction of the Payment Condition; provided that no investment of material Intellectual Property shall be made to any Affiliate or Subsidiary of the Borrower that is not a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07Loan Party.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with with, or as a Division Successor pursuant to the Division of, any Person that was not a wholly owned Subsidiary prior to such merger or consolidationconsolidation or Division) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
; (b) Permitted Acquisitions; (c) investments by the Company or a Subsidiary Borrower and its Subsidiaries existing on the Restatement Effective Date in the capital stock of its Subsidiaries;
; (cd) investments, loans or advances made by the Company to, Borrower in or to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, in or to the Company Borrower or any other Subsidiary;
Subsidiary (dprovided that not more than an aggregate amount of $10,000,000 in investments, loans or advances or capital contributions may be made and remain outstanding pursuant to this Section 6.04(d), at any time, by Loan Parties to Subsidiaries which are not Loan Parties); (e) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07.; 82
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any other Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesdivision, except:
(a) Permitted Investments;
(b) investments by Equity Interests existing on the Company or a Subsidiary date hereof in the capital stock of its Subsidiaries;
(c) Equity Interests in Subsidiaries formed after the Effective Date provided that each such Subsidiary becomes a Guarantor and otherwise complies with the requirements of Section 7.11;
(d) loans or advances made by the Company to, Borrower to any Guarantor and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, Guarantor to the Company Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01Guarantor;
(e) advances or loans made accounts receivable for sales of inventory and other products and services provided by the Borrower and its Subsidiaries to their respective customers in the ordinary course of business to employees of the Company Borrower and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Good Time Acquisition provided that Good Time Enterprise, Good Time Holding and Good Time Stores each becomes a Guarantor and executes the Security Agreement;; and
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;Permitted Acquisitions
(h) Permitted Acquisitions;Capital Expenditures.
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment Guarantees constituting Indebtedness permitted by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.078.01.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
(c) investments by the Company or a Subsidiary Borrower existing on the date hereof in the capital stock of its Subsidiaries;
(cd) investments, loans or advances made by the Company to, Borrower to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company Borrower or any other SubsidiarySubsidiary (provided that (A) not more than an aggregate of $10,000,000 in investments, loans, advances or capital contributions (other than payments of commissions to Commissionaires) may be made and remain outstanding, during the term of this Agreement, by Loan Parties to Persons which are not Loan Parties, (B) not more than an aggregate of $50,000,000 in payments of commissions may be outstanding at any time during the term of this Agreement by Loan Parties to Commissionaires and (C) payments to Commissionaires for value added taxes owed by such Commissionaire for receivables transferred to the Dutch Pledgor may be made);
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) receivables 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 such Subsidiary deems reasonable under the circumstances;
(h) investments consisting of Equity Interests, obligations, securities or other property received in settlement of delinquent accounts in the ordinary course of business and owing to the Borrower or any Subsidiary or in satisfaction of judgments;
(i) investments in payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(j) loans or loans advances to employees made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on Borrower or a Subsidiary not exceeding $2,000,000 in the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement of aggregate outstanding at any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquartersone time;
(k) Investments in joint ventures in an aggregate amount not to exceed Guarantees by the greater Borrower and the Subsidiaries of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment leases entered into by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))any Subsidiary as lessee;
(l) Investments, investments in addition to Investments the form of Swap Agreements permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons6.05;
(m) Investments so long as prior to making such Investment investments consisting of deposit and after giving effect securities accounts maintained in the ordinary course of business;
(including giving effect on a pro forma basisn) thereto investments acquired by Borrower or any of its Subsidiaries (i) no Default in exchange for any other investment held by Borrower or Event such Subsidiary in connection with or as a result of Default has occurred and is continuing a bankruptcy, workout, reorganization or would occur and recapitalization of the issuer of such investment, or (ii) as a result of a foreclosure by Borrower or any of its Subsidiaries with respect to any secured investment or other transfer of title with respect to any secured investment in default;
(o) Indebtedness permitted under Section 6.01(c)(i), (ii) or (iii); and
(p) other investments in an aggregate amount, as valued at the Company time each such investment is made, not exceeding $15,000,000 in compliance with Section 6.07the aggregate for all such investments made from and after the Effective Date.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Credit Party will, nor will not, and will not it permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee (except pursuant to the Guarantee Agreements) any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Company or a Subsidiary date hereof in the capital stock or partnership interests, as the case may be, of its Subsidiaries;
(c) loans acquisitions of stock (or advances made by other equity interests), of other Persons who become Subsidiaries of a Credit Party, and acquisitions of assets or business of any other Person, provided that the chief financial officer of the Company tocertifies to the Administrative Agent on behalf of the Lenders that the fair market value of the acquired stock, assets, or business is equal to or greater than the investment therein, and Guarantees by provided further that the Company aggregate of obligations ofall such investments (in each case including any Indebtedness of any Person that is or that thereby becomes a Credit Party) does not, any Subsidiary(i) without the consent of the Administrative Agent and the Required Lenders, exceed $2,000,000, or (ii) without the consent of the Administrative Agent and loans or advances made by any Subsidiary tothe Mandatory Lenders, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiaryexceed $10,000,000;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made aluminum futures contracts entered into in the ordinary course of business to employees for the purpose of hedging against the price of aluminum, provided that the aggregate amount of obligations thereunder shall not exceed $5,000,000 for the Company and its SubsidiariesSubsidiaries in the aggregate at any one time;
(e) loans to employees not to exceed $500,000 outstanding for the Company and its Subsidiaries in the aggregate at any one time;
(f) Investments existing on loans and advances from one Credit Party to another Credit Party; provided that the Effective Date not otherwise permitted under this recipient thereof shall have become a party to the Subsidiary Guarantee Agreement and the Security Documents, and the Credit Party making such loan or advance shall have become a party to the Subordination Agreement, and all other conditions of Section 5.04 and 6.01(f) shall have been met in respect thereof;
(g) Investments received purchases by Kinro Texas Limited Partnership, a Texas limited partnership, Kinro Tennessee Limited Partnership, a Tennessee limited partnership, Shoals Supply Texas Limited Partnership, a Texas limited partnership, and Shoals Supply Tennessee Limited Partnership, a Tennessee limited partnership, from the Company of common stock of the Company, which stock will be transferred to employees of such limited partnerships as part of the compensation of such employees in connection accordance with the bona fide settlement of any defaulted Indebtedness or other liability owed Drew Industries Incorporated Stock Option Plan as amended from time to the Company or any Subsidiary;time; and
(h) Permitted Acquisitions;
(i) Swap Agreements the loans and investments listed on Schedule 6.04, provided that the same shall not entered into for speculative purposes;
(j) Investments in connection with be increased or the ownership, development, leasing, acquisition, construction repayment or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07return thereof deferred.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and Holdings will not nor will it permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation amalgamation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationamalgamation) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliates(each, an “Investment”), except:
(a) Permitted Investments(i) Equity Interests in Subsidiaries and Existing MGHL Joint Ventures owned as of the Effective Date or which are in the process of being established as of the Effective Date; (ii) loans and advances outstanding on the Effective Date made by Holdings or any Subsidiary to Holdings or any Subsidiary; and (iii) investments existing on the Effective Date (or in connection with Existing MGHL Joint Ventures, are in the process of being established as of the Effective Date) other than those described in this clause (a) (the “other investments”) as long as: (A) the aggregate book value of all such other investments outstanding on the Effective Date does not exceed $15,000,000 or (B) to the extent the limits in clause (A) are exceeded, such other investments are described on Schedule 6.04 hereto or are otherwise permitted by this Section 6.04;
(bi) investments Investments made after the Effective Date among Holdings, the Borrower and any other Loan Party, (ii) Investments by a Loan Party in any Subsidiary that is not a Loan Party in the Company form of any contribution or Disposition of the Equity Interests of any Person that is not a Loan Party, and (iii) Investments made after the Effective Date by Holdings, the Borrower or any other Subsidiary in Holdings, the Borrower or any other Subsidiary (including in any Subsidiary that is formed or created after the Effective Date); provided, that in the case of this clause (iii), the aggregate outstanding amount of any such Investments made by a Loan Party in a Subsidiary that is not a Loan Party shall not exceed an amount equal to (x) $50,000,000 with respect to any such Investment in any one Non-Loan Party or $100,000,000 in the capital stock aggregate for all such Investments by Loan Parties in Subsidiaries that are Non-Loan Parties plus (y) the amount of its Subsidiariesany such Investments otherwise permitted to be incurred under this Section 6.04 (including clauses (i) and (k) hereof);
(ci) loans or advances Investments in any EBT outstanding on the Effective Date and Investments made by in an EBT after the Company toEffective Date in satisfaction of requirements set forth in the EBT Loan Agreements, and Guarantees by (ii) to the Company extent constituting an Investment, payments made to or on behalf of obligations of, any Subsidiary, an EBT to finance its administrative expenses and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary similar operational expenses in the ordinary course of obligations of, the Company or any other Subsidiarybusiness consistent with past practice;
(d) Guarantees constituting Indebtedness permitted by Section 6.01Investments made in accordance with Holdings’ approved investment policy as it exists from time to time;
(e) Guarantees by Holdings of Indebtedness or other obligations of any Subsidiary or by any Subsidiary of Indebtedness or other obligations of Holdings or any other Subsidiary; provided, that in the case of any Guarantee by a Loan Party of Indebtedness for borrowed money of a Non-Loan Party, the amount of such Indebtedness shall not exceed (x) $50,000,000 with respect to any such Indebtedness of any one Non-Loan Party or $100,000,000 in the aggregate for such Indebtedness of all such Non-Loan Parties plus (y) the amount of any such Investments otherwise permitted to be incurred under this Section 6.04 (including clauses (i) and (k) hereof);
(f) Investments in connection with Hedge Agreements permitted by Section 6.06;
(g) loans and advances or loans to officers, directors, and employees of Holdings and its Subsidiaries made in the ordinary course of business up to employees of a maximum of: (i) with respect to loans and advances made for travel and entertainment expenses, $10,000,000 in the Company aggregate at any one time outstanding and its Subsidiaries;
(fii) Investments existing on with respect to loans and advances for other purposes, $2,500,000 in the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement of aggregate at any defaulted Indebtedness or other liability owed to the Company or any Subsidiaryone time outstanding;
(h) Permitted AcquisitionsInvestments to the extent the consideration paid therefore consists of common Equity Interests of Holdings or MGHL or any of its Subsidiaries, in each case, to the extent not resulting in a Change in Control;
(i) Swap Agreements Investments not entered into for speculative purposesotherwise permitted hereunder, provided that the aggregate outstanding amount of all such Investments does not exceed $100,000,000 and 8.0% of Consolidated EBITDA as of the last day of the most recently ended Test Period;
(j) Investments in connection with the ownershipconsisting of (or resulting from) Liens permitted under Section 6.02, developmentRestricted Payments permitted under Section 6.07 (other than Section 6.07(d)) and mergers, leasingconsolidations, acquisitionamalgamations, construction liquidations, windings up or improvement of the Corporate Headquarters;dissolutions permitted under Section 6.03 or Dispositions permitted by Section 6.05 (other than Section 6.05(d)); and
(k) in addition to the other Investments permitted by this Section 6.04 and notwithstanding any limits imposed by the other permissions of this Section 6.04, Holdings and/or any Subsidiary may (x) purchase, hold or acquire (including pursuant to a merger, consolidation or amalgamation) any Equity Interests in joint ventures or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to or make or permit to exist any investment or any other interest in, any other Person (including any of the foregoing with respect to a Non-Loan Party), (y) purchase or otherwise acquire (in an aggregate amount one transaction or a series of transactions) all or substantially all of the assets of any other Person who is not to exceed a Subsidiary or all or substantially all of the greater assets of a division or branch of such Person and/or (iz) $100,000,000 and (ii) 2.75% of Total Assets (determined make any other Investment, in each case, as long as at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07.made:
Appears in 1 contract
Samples: Credit Agreement (IHS Markit Ltd.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any all or substantially all of the property and assets or business of another Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesotherwise), except:
(a) Permitted Investments, subject to a perfected security interest in favor of the Agent for the benefit of the Lenders;
(b) investments in existence or contemplated on the date of this Agreement and described in Schedule 6.04; and any modification, replacement, renewal, reinvestment or extension thereof (provided that the amount of the original investment is not increased except as otherwise permitted by this Section 6.04), and any investments, loans and advances existing on the date hereof by the Company Borrower or a any Subsidiary in or to the capital stock Borrower or any other subsidiary of its Subsidiariesthe Borrower;
(c) loans or advances made to officers, directors and employees of Holdings, the Borrower and any Subsidiary (i) for reasonable and customary business related travel, entertainment, relocation and analogous ordinary business purposes and (ii) in connection with such Persons’ purchase of Equity Interests of Holdings (or any direct or indirect parent thereof (provided that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity));
(d) investments by Holdings in the Borrower and by the Company to, Borrower and Guarantees by the Company of obligations of, Subsidiaries that are Loan Parties in Equity Interests in their respective Subsidiaries that are Loan Parties; provided that any Subsidiary, and such Equity Interest shall be pledged pursuant to the Security Agreement (subject to the limitations referred to in Section 5.11);
(e) loans or advances made by the Borrower to any Subsidiary to, that is a Loan Party and Guarantees made by any Subsidiary of obligations of, that is a Loan Party to the Company Borrower or any other SubsidiarySubsidiary that is a Loan Party;
(df) Guarantees constituting Indebtedness permitted by Section 6.016.01 by Loan Parties of any Indebtedness of other Loan Parties;
(g) investments in the form of Swap Agreements permitted by Section 6.07;
(h) 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 of the Subsidiaries (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;
(i) investments received in connection with the dispositions of assets permitted by Section 6.05;
(j) investments constituting deposits described in clauses (d) and (e) advances of the definition of the term “Permitted Encumbrances”;
(k) accounts receivable or loans made notes receivable arising and trade credit granted in the ordinary course of business and other credits to employees suppliers or vendors in the ordinary course of the Company and its Subsidiariesbusiness;
(fi) Investments existing on Permitted Acquisitions and (ii) acquisitions of the Effective Date not otherwise minority interests in Xxxx Spade LLC and/or Gurwitch Products LLC to the extent such acquisitions are financed with Subordinated Indebtedness permitted under this AgreementSection 6.01(v);
(gm) Investments Liens, Indebtedness, fundamental changes, dispositions and Restricted Payments permitted under Sections 6.01, 6.02, 6.03, 6.05, 6.06 and 6.08, respectively;
(n) the Transactions;
(o) investments in the ordinary course of business consisting of Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;
(p) investments (including debt obligations and Equity Interests) received in connection with the bona fide bankruptcy or reorganization of suppliers and customers or in settlement of any defaulted Indebtedness or delinquent obligations of, or other liability owed disputes with, customers and suppliers arising in the ordinary course of business or received upon the foreclosure with respect to the Company any secured investment or other transfer of title with respect to any Subsidiarysecured investment;
(hq) Permitted Acquisitionsloans and advances to Holdings (or any direct or indirect parent thereof) in lieu of, and not in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof), Restricted Payments to the extent permitted to be made to Holdings in accordance with Section 6.08(a)(v);
(ir) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 advances of payroll payments to employees in the ordinary course of business and (ii) 2.75% investments in Quality Call Care Solutions, Inc. and Willow Bend Beverage Corporation, in each case to satisfy ordinary course payroll and other obligations of Total Assets such company;
(determined at the time of each such investment by reference s) investments to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) extent that payment for such investments is made solely with Qualified Equity Interests of Holdings (or (b) or, if prior to the date Borrower after a Qualified Public Offering of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)Borrower);
(lt) Investments, in addition to Investments permitted under clauses (a) through (j) investments arising as a result of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at HSBC Arrangements or any time outstanding in any Person or PersonsPermitted Replacement Credit Card Program;
(mu) Investments so long as prior guarantees by Holdings, the Borrower or any Subsidiary of leases (other than capitalized leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(v) other investments, loans and advances by the Borrower and the Subsidiaries provided that, at the time such an investment, loan or advance is made, the Payment Conditions are satisfied; and
(w) other investments, loans and advances by the Borrower and the Subsidiaries which, together with any Restricted Payments made pursuant to making such Investment Section 6.08(a)(xii) and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default Restricted Debt Payments made pursuant to Section 6.08(b)(x), do not exceed $30,000,000 in the aggregate. For purposes of covenant compliance, the amount of any investment shall be the amount actually invested, without adjustment for subsequent increases or Event of Default has occurred and is continuing or would occur and (ii) decreases in the Company is in compliance with Section 6.07value thereof.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Company or a Subsidiary Borrower and its Subsidiaries in the capital stock Equity Interests of its Restricted Subsidiaries;
(c) loans or advances made by the Company to, Borrower to any Restricted Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company Borrower or any other Restricted Subsidiary;; and
(d) Guarantees constituting Indebtedness permitted by Section 6.015.09;
(e) investments consisting of Swap Agreements to the extent permitted under Section 5.09(g);
(f) loans or advances or loans made to employees in the ordinary course of business to in an aggregate amount for all employees of the Company Borrower and its SubsidiariesSubsidiaries not in excess of $750,000 at anyone time outstanding;
(fg) Investments existing on trade credits and accounts arising in the Effective Date not otherwise permitted under ordinary course of business;
(h) investments made as a result of the receipt of non-cash considerations from a disposition that was made pursuant to and in compliance with this Agreement;
(gi) Investments received investments made in connection with any debtor of the bona fide Borrower or any Restricted Subsidiary as a result of the receipt of stock, obligations or securities in settlement of any defaulted Indebtedness or other liability owed debts created in the ordinary course of business and owing to the Company Borrower or any Restricted Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments investments made pursuant to the requirements of farm-out, farm-in, unit, joint operating, unit operating, joint venture, area of mutual interest and other oil and gas agreements, gathering systems, pipelines or other similar or customary arrangements entered into the ordinary course of business (including advances to operators under operating agreements entered into by the Borrower or any Subsidiary in connection with the ownership, development, leasing, acquisition, construction or improvement ordinary course of business); provided that any such single investment in excess of $3,000,000 shall be approved by the Board of Directors of the Corporate HeadquartersBorrower;
(k) Investments investments made in joint ventures connection with the purchase, lease, or other acquisition of tangible assets of any Person and investments made in an aggregate amount not to exceed connection with the greater purchase, lease or other acquisition of all or substantially all of the business, of any Person, or all of the capital stock or other equity interests of any Person, or any division, line of business or business unit of any Person (including (i) $100,000,000 by the merger or consolidation of such Person into the Borrower or any Restricted Subsidiary or by the merger of a Restricted Subsidiary into such Person and (ii) 2.75% the purchase of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)proved reserves);
(l) Investments, in addition repurchase of Equity Interests deemed to Investments permitted under clauses (a) occur upon exercise of stock options or warrants if such Equity Interest represent a portion of the exercise price or such options or warrants or the payment of withholding taxes through (j) the issuance of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or PersonsEquity Interests;
(m) Investments so long as prior to making the purchase of fractional shares arising out of stock dividends, splits or combinations or business combinations;
(n) any other investments in any Person having an aggregate fair market value (measured on the date each such Investment investment was made and after without giving effect to subsequent changes in value), when taken together will all other investments made pursuant to this clause (including giving effect on a pro forma basisn) thereto do not exceed $2,000,000 outstanding at any time;
(io) no Default investments outstanding as of the Effective Date in Unrestricted Subsidiaries; and
(p) investments, loans, advances and acquisitions in exchange for, or Event out of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07net cash proceeds from the sale of, Equity Interests of the Borrower.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stockEquity Interests, evidences of indebtedness Indebtedness or other securities (including other than any option, warrant or other right to acquire any Hedging Agreement entered into in the ordinary course of the foregoingbusiness) of, make or permit to exist any loans or advances (excluding accounts receivable arising out of the sale of goods and services reflected on the Company's consolidated balance sheet as current assets) to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(bi) investments existing on the date hereof in the capital stock of Subsidiaries or in Indebtedness of Subsidiaries and (ii) other investments existing on the date hereof and set forth on Schedule 6G;
(c) acquisitions of assets of or Equity Interests in other Persons with an aggregate fair market value for all such acquisitions not to exceed $250,000,000 for consideration consisting solely of common stock of the Company;
(d) acquisitions of assets of or Equity Interests in other Persons if, at the time of and after giving pro forma effect to each such acquisition and any related incurrence of Indebtedness, the Leverage Ratio is less than 2.50 to 1.00;
(e) (i) any investment, loan or advance by the Company or a Guarantor in or to the Company or another Guarantor, (ii) any investment, loan or advance by a Subsidiary that is not a Guarantor in or to the Company or a Guarantor, (iii) any investment, loan or advance by any Subsidiary that is not a Guarantor in or to any other Subsidiary that is not a Guarantor and (iv) any investment, loan or advance by the Company or any Guarantor in or to any Subsidiary that is not a Guarantor; provided that each investment, loan or advance referred to in the capital stock preceding clause (iv) must be in an outstanding principal amount which, together with the aggregate outstanding principal amount of its Subsidiariesall other investments, loans and advances permitted by such clause (iv), shall not exceed $75,000,000 at any time;
(cf) loans or advances made Guarantees by a Subsidiary constituting Indebtedness permitted by Paragraph 6A (provided that a Subsidiary shall not Guarantee any obligation of the Company to, unless such Subsidiary also becomes a Guarantor in respect of the Guarantied Obligations) and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made Indebtedness of a Subsidiary permitted by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other SubsidiaryParagraph 6A;
(dg) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiarybusiness;
(h) Permitted Acquisitions;loans or other advances to employees consistent with past practice; and
(i) Swap Agreements other investments not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (jh) of this Section 6.04 made after the Effective Date above in an aggregate amount not to exceed exceeding $500,000,000 75,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07time.
Appears in 1 contract
Samples: Note Agreement and Guaranty (Albany International Corp /De/)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrowers will not, and will not permit any of its their Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any capital contributions or any loans or advances to, enter into or permit to exist any Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all the foregoing being called “investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) the Acquisition;
(b) Permitted Investments;
(bc) investments existing on the Effective Date and set forth on Schedule 6.04;
(d) investments by the Company or Borrowers and their Subsidiaries in Equity Interests in their respective subsidiaries and in Dunnxxxx; xxovided that any such Equity Interests (other than those of Dunnxxxx) xxld by a Subsidiary Loan Party shall be pledged pursuant to the Security Agreement to the extent required in order for the capital stock of its SubsidiariesCollateral and Guarantee Requirement to be satisfied;
(ce) loans or advances made by the Company to, to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company or any other Subsidiary; provided that (i) the aggregate amount of any such loans and advances made by a Loan Party to any Subsidiary that is not a Loan Party shall not exceed $35,000,000 and (ii) any such loans and advances made by a Loan Party shall be evidenced by a promissory note (which may be in the form of a grid note) pledged pursuant to the Security Agreement;
(df) Guarantees constituting Indebtedness permitted by Section 6.01;
(eg) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) the acquisition of all or substantially all the assets of a Person or line of business of such Person, or not less than 100% of the Equity Interests (except for directors’ qualifying shares) of a Person (referred to herein as the “Acquired Entity”); provided that (i) such acquisition was not preceded by an unsolicited tender offer for such Equity Interests by, or proxy contest initiated by, the Company or any Subsidiary; (ii) after giving effect to the acquisition the Borrower shall be in compliance with Section 6.03(b); (iii) the Acquired Entity is located, and substantially all of its operations are conducted, in the United States of America; (iv) both before and after giving effect to such acquisition no Default or Event of Default shall have occurred and be continuing; (v) after giving effect to such acquisition (A) the Borrower would be in Pro Forma Compliance and (B) Availability, determined on a Pro Forma Basis, shall have been and shall be not less than 25% of the aggregate Revolving Commitments at all times during the period commencing on the 60th day before such acquisition and ending on the first anniversary of such acquisition; (vi) the Company shall comply, and shall cause the Acquired Entity to comply, with the applicable provisions of Sections 5.14 and 5.15 and the Collateral Documents; and (vii) the Company shall have delivered to the Administrative Agent a certificate of a Financial Officer of the Company in form and detail reasonably satisfactory to the Administrative Agent setting forth computations demonstrating compliance with the requirement set forth in the preceding clause (v) and confirming that the other requirements of this paragraph (h) have been satisfied (any acquisition of an Acquired Entity meeting all the criteria of this paragraph (h) being referred to herein as a “Permitted Acquisition”);
(i) deposits, prepayments and other credits to suppliers, lessors and landlords made in the ordinary course of business;
(j) advances by the Company or loans any Subsidiary to employees in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes;
(k) promissory notes and/or Equity Interests issued by purchasers in connection with sales of assets permitted under Section 6.05 (provided that any such promissory note in an amount in excess of $2,500,000 shall be pledged pursuant to the Security Agreement);
(l) investments constituting deposits described in clauses (c) and (d) of the definition of “Permitted Encumbrances”;
(m) investments made by any Loan Party in any Subsidiary that is not a Loan Party; provided that such investments are made in the ordinary course of business to employees and the aggregate amount of the Company and its Subsidiaries;all such investments shall not exceed $35,000,000; and
(fn) Investments existing on acquisitions of individual retail store locations and leases. For the Effective Date not otherwise permitted under purposes of this Agreement;
(g) Investments received in connection with Section, any unreimbursed payment by the bona fide settlement of any defaulted Indebtedness Borrower for goods or other liability owed services delivered to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements a Subsidiary shall be deemed to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to an investment in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Dress Barn Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly Loan Party and a wholly-owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investmentsinvestments in cash and Cash Equivalents;
(b) investments in existence on the date of this Agreement and described in Schedule 6.04;
(c) investments by Holdings, the Company or a Subsidiary Borrower and its Restricted Subsidiaries in the capital stock of its their respective Restricted Subsidiaries; provided, that the aggregate amount of investments (together with the aggregate amount of loans and advances described in Section 6.04(d)), as of any date of determination, made by Holdings, the Borrower or the other Loan Parties in the capital stock of their respective Restricted Subsidiaries that are not Loan Parties does not at any time exceed an amount equal to $10 million (with the amount of any such investments being the original cost of such investment, less all repayments, returns, dividends and distributions, in each case received in cash in respect of such investment and less all liabilities effectively assumed by a person other than any Loan Party or any Restricted Subsidiary thereof in connection with the sale of any such investment);
(cd) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations ofHoldings, the Company Borrower or any of its Restricted Subsidiaries to Holdings, the Borrower or any other Restricted Subsidiary; provided, that the aggregate amount of loans and advances (together with the aggregate amount of investments described in Section 6.04(c)) made by Holdings, the Borrower or the other Loan Parties to Restricted Subsidiaries that are not Loan Parties that are at any time outstanding does not, as of any date of determination, exceed an amount equal to $10 million;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) Permitted Acquisitions;
(g) (i) loans and advances to employees of the Borrower or loans any Restricted Subsidiaries in the ordinary course of business (including to finance the purchase of Equity Interests of the Borrower) in an aggregate amount for the Borrower and its Restricted Subsidiaries not to exceed $5 million at any time outstanding and (ii) payroll, travel, entertainment, relocation and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses of the Borrower or any Restricted Subsidiary for accounting purposes and that are made in the ordinary course of business to employees of the Company and its Subsidiariesbusiness;
(fh) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments investments received in connection with the bona fide bankruptcy or reorganization of any Person or in settlement of obligations of, or disputes with, any defaulted Indebtedness or other liability owed to Person arising in the Company or any Subsidiary;
(h) Permitted Acquisitionsordinary course of business;
(i) Swap Agreements not entered into for speculative purposespermitted by Section 6.06;
(j) Investments investments consisting of extensions of credit in connection with the ownership, development, leasing, acquisition, construction nature of accounts receivable or improvement notes receivable arising from the grant of trade credit in the Corporate Headquartersordinary course of business;
(k) Investments investments made in joint ventures and Unrestricted Subsidiaries in an aggregate outstanding amount not to exceed the greater of (i) $100,000,000 19.5 million and (ii) 2.7515% of Total Assets EBITDA for the most recently ended Reference Period for which financial statements have been (determined at the time of each such investment by reference or were required to be) delivered to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))Administrative Agent at any time outstanding;
(l) Investmentsto the extent constituting investments, performance guarantees of obligations of the Borrower’s Restricted Subsidiaries in addition to Investments permitted under clauses (a) through (j) the ordinary course of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Personsbusiness;
(m) Investments in addition to investments otherwise expressly permitted by this Section 6.04, investments, loans and advances by the Borrower or any of its Restricted Subsidiaries in an aggregate amount (valued at cost) not to exceed the greater of (i) $19.5 million and (ii) 15% of EBITDA for the most recently ended Reference Period for which financial statements have been (or were required to be) delivered to the Administrative Agent at any time outstanding;
(n) additional investments by the Borrower or any of its Restricted Subsidiaries, so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) (x) if such investment is made as or in connection with a Limited Condition Acquisition, no Event of Default under clauses (a), (b), (h) and (i) has occurred and is continuing or would immediately result therefrom or (y) in each other case, no Event of Default has occurred and is continuing or would occur immediately result therefrom and (ii) the Company is Total Net Leverage Ratio for the most recently ended Reference Period for which financial statements have been (or were required to be) delivered to the Administrative Agent does not exceed 6.00 to 1.00 on a pro forma basis (after giving effect to the making of such investment); provided that any Limited Condition Acquisition remains subject to the terms of Section 1.08 hereof;
(o) 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;
(p) investments resulting from pledges or deposits described in clause (c) or (d) of the definition of the term “Permitted Encumbrance”;
(q) investments made as a result of the receipt of noncash consideration from a sale, transfer, lease or other disposition of any asset in compliance with Section 6.076.05;
(r) 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;
(s) mergers and consolidations permitted under Section 6.03 that do not involve any Person other than the Borrower and Restricted Subsidiaries that are wholly-owned Restricted Subsidiaries;
(t) to the extent constituting investments, advances to or from a Foreign Subsidiary in respect of transfer pricing and cost-sharing arrangements (i.e. “cost-plus” arrangements) in connection with the services provided by such Foreign Subsidiary to a Loan Party; and
(u) to the extent constituting investments, any Permitted Equity Derivatives.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Wholly - Owned Subsidiary prior to such merger or consolidationmerger) any capital stockEquity Interests in, or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, or make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments and investments by Foreign Subsidiaries which are held or made outside the United States of the same or similar quality as the Permitted Investments;
(b) investments, loans and advances existing on the date hereof and set forth on Schedule 5.23, to the extent such investments by the Company or a Subsidiary in the capital stock would not be permitted under any other clause of its Subsidiariesthis Section;
(c) investments by the Borrower and its Subsidiaries in Equity Interests in their respective Subsidiaries, provided that any such Equity Interests issued by a Material Subsidiary shall be pledged to the extent required hereby;
(d) loans or advances made by the Company to, Borrower to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company Borrower or any other SubsidiarySubsidiary in accordance with the limitations set forth in Section 5.12;
(de) Guarantees constituting Indebtedness permitted by Section 6.015.12;
(ef) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementbusiness;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiaryasset acquisitions permitted by Section 5.10;
(h) Permitted Acquisitionsextensions of trade credit in the ordinary course of business;
(i) Swap Agreements investments in the Equity Interests in the special purpose entities established under the Receivable Securitizations permitted by Section 5.12; provided that, the aggregate amount of cash invested in all such entities shall not entered into for speculative purposesexceed $100,000;
(j) Investments in connection with the ownershipBorrower or any Subsidiary may purchase, developmenthold or acquire any Equity Interests in, leasingor evidences of Indebtedness or other securities (including any option, acquisition, construction warrant or improvement other right to acquire any of the Corporate Headquarters;foregoing) of, or make or permit to exist any loans or advances to, or make or permit to exist any other investment or any other interest in, any other Person; provided that, the sum of the following made, acquired or held under the permissions of this clause (j) the shall not exceed $5,000,000 at any time: (i) the aggregate amount paid to acquire the Equity Interests, other securities, other investments or other interest in Persons; plus (ii) the aggregate outstanding principal amount of any Indebtedness and other loans and advances; and
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing exists or would occur result therefrom, Borrower and any Subsidiary may acquire all the Equity Interests of any Person or all or substantially all of the assets of any Person or the assets of a Person constituting a business unit if:
(i) The Target is involved in similar types of business activities as the Borrower or the Subsidiary;
(ii) If the Company proposed acquisition is in compliance an acquisition of the Equity Interests of a Target, the acquisition is structured so that the Target will become a Wholly-Owned Subsidiary or will, simultaneously with Section 6.07.the acquisition be merged into the Borrower or a Wholly-
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Lennox International Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments investments, loans and advances by the Company Borrower and its Subsidiaries existing on the date hereof in or a Subsidiary to other Persons (including investments, loans and advances by Borrower in the capital stock of or to its Subsidiaries) and set forth on Schedule 6.04;
(c) investments, loans or advances (i) made by the Company toBorrower or any Guarantor to any Guarantor (or any Person that will substantially concurrently with such investment, and Guarantees by the Company of obligations ofloan or advance become a Guarantor), any Subsidiary, and loans or advances (ii) made by any Subsidiary toto the Borrower or any Guarantor, and Guarantees (iii) made by any Subsidiary of obligations ofthat is not a Guarantor to any other Subsidiary that is not a Guarantor, the Company and (iv) made by Borrower or any Guarantor to any Subsidiary that is not a Guarantor (other Subsidiarythan as a result of directors’ qualifying shares as required by applicable law); provided, that the aggregate amount of investments, loans or advances incurred under this clause (iv) plus the aggregate amount of Guarantees referred to in the proviso to clause (d) below shall not exceed the greater of (A) $20,000,000 and (B) 5% of Total Assets (as determined as of the date of such investment, loan or advance) at any one time outstanding;
(d) Guarantees constituting Indebtedness permitted by Section 6.016.01 or any other liabilities; provided, that the aggregate principal amount of Indebtedness and liabilities of Person that is not Loan Parties that is Guaranteed by a Loan Party plus the aggregate amount of investments, loans and advances outstanding pursuant to clause (c)(iv) above shall not exceed the greater of (A) $20,000,000 and (B) 5% of Total Assets (as determined as of the date of such Guarantee) at any time outstanding;
(e) Acquisitions meeting the following requirements or otherwise approved by the Required Lenders (each such Acquisition constituting a “Permitted Acquisition”):
(i) as of the date of the consummation of such Acquisition, no Default shall have occurred and be continuing or would result from such Acquisition, and the representation and warranty contained in Section 5.08 shall be true both before and after giving effect to such Acquisition;
(ii) such Acquisition is consummated on a non-hostile basis pursuant to a negotiated acquisition agreement approved by the board of directors or other applicable governing body of the seller or entity to be acquired;
(iii) the business to be acquired in such Acquisition is similar, ancillary, complementary or related to one or more of the lines of business in which the Borrower and its Subsidiaries are engaged on the Effective Date (including without limitation related, complementary, synergistic or ancillary technologies in which the Borrower and its Subsidiaries are currently engaged);
(iv) as of the date of the consummation of such Acquisition, all material approvals required in connection therewith shall have been obtained; and
(v) after giving pro forma effect to such Acquisition, the Total Leverage Ratio shall not exceed 2.50 to 1.0;
(f) investments, loans and advances made by the Borrower or any Guarantor in or for the benefit of any Subsidiary that is not a Guarantor, investments in or loans made or advances to, joint ventures and other investments in any other Persons, and Guarantees of obligations of any Person other than a Loan Party, provided that (i) as of the date of such investment, no Default shall have occurred and be continuing or result from such investment, loan, advance or Guarantee, (ii) such investment is related to one or more of the lines of business conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related, ancillary or complementary thereto (including related, complementary, synergistic or ancillary technologies in which the Borrower and its Subsidiaries are currently engaged) and (iii) after giving pro forma affect to such investment, the Total Leverage Ratio shall not exceed 2.50 to 1.0;
(g) transactions consummated pursuant to Swap Agreements permitted by Section 6.05;
(h) loans and advances constituting Indebtedness permitted by Section 6.01;
(i) endorsements for collection or deposit in the ordinary course of business consistent with past practice, (ii) extensions of trade credit (other than to employees Affiliates of the Company Borrower) arising or acquired in the ordinary course of business and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(giii) Investments received in connection with settlements in the bona fide settlement ordinary course of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposesbusiness of such extensions of trade credit;
(j) Investments investments by any Loan Party or any Subsidiary of a Loan Party in connection with the ownership, development, leasing, acquisition, construction any Subsidiary of such Person which is required by law to maintain a minimum net capital requirement or improvement of the Corporate Headquartersas may otherwise be required by applicable law or regulation;
(k) Investments extensions of credit in joint ventures the nature of accounts receivable or notes receivable arising from the sale or lease of goods in the ordinary course of business;
(l) loans or advances to employees, officers or directors of the Borrowers or any of their Subsidiaries in the ordinary course of business; provided that the aggregate amount of all such loans and advances does not exceed $1,000,000 at any time outstanding;
(m) investments held and loans and advances made by a Person acquired in a Permitted Acquisition or an Acquisition that is otherwise permitted hereunder to the extent that such investments, loans or advances were not made in connection with or contemplation of such acquisition and were in existence as of the date of consummation of such acquisition;
(n) investments by the Borrower or any of its Subsidiaries for which the consideration consists solely of Equity Interests of the Borrower; and
(o) other Acquisitions and investments in an annual aggregate amount for all such transactions not to exceed the greater of (ix) $100,000,000 25,000,000 and (iiy) 2.755% of Total Assets (determined at the time measured as of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) such Acquisition or (binvestment), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07.
Appears in 1 contract
Samples: Credit Agreement (Masimo Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, (i) purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly wholly-owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any capital stock, evidences of the foregoingIndebtedness or other securities) ofof any other Person (including as a result of which such Person becomes a Subsidiary), or make or permit to exist any capital contribution or other equity interest in any other Person (any transaction referred to in clause (i), an “investment”), (ii) 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, (iii) provide a Guarantee of any obligations of any other Person or (iv) purchase or otherwise acquire (in one transaction or a series of transactions) any Person all or any substantially all of the assets of any other Person, or a division or line of business of such a Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliates(an “acquisition”), except:
(a) Permitted InvestmentsInvestments at the time the applicable Permitted Investment is made;
(b) Permitted Acquisitions, including investments held by any Person on the date such Person is acquired as part of a Permitted Acquisition;
(c) investments, loans or advances by the Company Borrower and its Subsidiaries in or to (i) a Subsidiary Loan Party and (ii) any Person that, as a result of such investment, loan or advance, becomes a Loan Party;
(d) investments, loans or advances by Loan Parties to any Persons that are not Loan Parties not otherwise permitted under this Section 6.04 in or to (i) Subsidiaries, not to exceed $30,000,000, (ii) Unrestricted Subsidiaries, not to exceed $15,000,000, and (iii) Evolent Health Holdings, Inc., Evolent Health, Inc. and Evolent Health LLC (or any successor to any thereof), not to exceed $15,000,000, in each case in the capital stock aggregate at any time outstanding;
(e) Guarantees constituting Indebtedness permitted under Section 6.01 (other than Section 6.01(n));
(f) Swap Agreements permitted under Section 6.05;
(g) deposits described in clauses (c) and (d) of the definition of “Permitted Encumbrances”;
(h) extensions of trade credit in the ordinary course of business;
(i) prepayments or advances made in connection with purchases of goods or services in the ordinary course of business;
(j) investments arising in connection with the incurrence of Indebtedness permitted under Section 6.01 (other than Section 6.01(n));
(k) investments received in settlement of amounts due to the Borrower or any of its Subsidiaries effected in the ordinary course of business or owing to the Borrower or any of its Subsidiaries as a result of a Bankruptcy Event involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of the Borrower or any of its Subsidiaries;
(cl) loans or and advances made by to employees of the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company Borrower or any of its Subsidiaries for moving, entertainment, travel and other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made similar expenses in the ordinary course of business not to exceed $4,000,000 in the aggregate at any time outstanding;
(m) non-cash loans to employees of the Company and Borrower or any of its SubsidiariesSubsidiaries for the purpose of purchasing Equity Interests in the Borrower so long as the proceeds of such loans are used in their entirety to purchase such Equity Interests;
(fn) Investments existing investments resulting from entry into Banking Services Agreements;
(o) investments constituting non-cash consideration received in connection with any Asset Sale permitted under Section 6.03 (other than Section 6.03(a)(v));
(p) investments by the Borrower or any Subsidiary resulting from the purchase, redemption, retirement or other acquisition of Equity Interests permitted under Section 6.07;
(q) investments, loans, advances, Guarantees and acquisitions outstanding, or subject to agreements in effect, on the Effective Date date hereof and described on Schedule 6.04 and any modification, replacement, renewal, reinvestment or extension thereof; provided that the amount of such investment as of the date hereof is not increased except by the terms of such investment to the extent set forth on Schedule 6.04 or as otherwise permitted under by this Section 6.04;
(r) any other investment, loan, advance or acquisition so long as the aggregate amount of all such investments, loans, advances and acquisitions does not exceed (A) $75,000,000 plus (B) the Available Amount to the extent Not Otherwise Applied, during the term of this Agreement;
(gs) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 additional investments and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and acquisitions; provided that after giving effect to any such investment or acquisition and related incurrence of Indebtedness (including giving effect A) on a pro forma basis) thereto , the Total Leverage Ratio is less than or equal to 4.25 to 1.00 and (iB) no Default or Event of Default has occurred and is continuing or would occur result therefrom;
(t) investments by the Borrower in a Subsidiary that will own the Borrower’s new headquarters building and related real and personal property to be made in connection with the Borrower’s entry into a lease of such headquarters building so long as the aggregate amount of all such investments pursuant to this clause (iit) does not exceed $25,000,000 in the aggregate at any time outstanding;
(u) contributions to a “rabbi” trust for the benefit of employees, directors, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Borrower;
(v) to the extent they may be deemed to constitute investments, purchases and acquisitions of inventory, supplies, materials or equipment or purchases, acquisitions, licenses or leases of other assets, intellectual property or other rights, in each case in the ordinary course of business;
(w) investments by an Unrestricted Subsidiary entered into prior to the day such Unrestricted Subsidiary is redesignated as a Subsidiary pursuant to the definition of “Unrestricted Subsidiary”; and
(x) the Company is in compliance with Section 6.07Transactions.
Appears in 1 contract
Samples: Credit Agreement (Advisory Board Co)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
(c) investments by the Company or a Subsidiary Borrower and its Subsidiaries existing on the Amendment No. 4 Effective Date in the capital stock of its Subsidiaries;
(cd) investments existing on the Amendment No. 4 Effective Date which are listed on Schedule 6.04 hereto;
(e) investments, loans or advances made by the Company to, and Guarantees by the Company of obligations of, Borrower in or to any Subsidiary, or any Guarantee of Indebtedness of such Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, in or to the Company Borrower or any other Subsidiary, including a Guarantee by such Subsidiary; provided, that (i) not more than an aggregate amount of $60,000,000 in investments, loans, advances, Guarantees or capital contributions subsequent to the date of this Agreement may be made and remain outstanding, at any time, by Loan Parties to or in respect of Subsidiaries which are not Loan Parties; (ii) investments in Xxxxx Energy shall only be made by the Borrower, and such investments shall only take the form of loans and advances made by the Borrower to Xxxxx Energy; and (iii) no such investment, loan, advance, capital contribution, in or to, or Guarantee of Indebtedness of, a Subsidiary that is not a Loan Party, may be made at any time that a Default or an Event of Default exists or would result therefrom;
(df) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any SubsidiaryIntentionally Omitted;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
(c) investments by the Company or a Subsidiary Borrower and its Subsidiaries existing on the date hereof in the capital stock of its Subsidiaries;
(cd) investments, loans or advances made by the Company to, Borrower in or to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, in or to the Company Borrower or any other SubsidiarySubsidiary (provided that not more than an aggregate amount of $25,000,000 in investments, loans or advances or capital contributions may be made and remain outstanding, at any time, by Loan Parties to Subsidiaries which are not Loan Parties);
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) advances investments in Swap Agreements permitted under Section 6.05;
(g) the endorsement of instruments for collection or loans made deposit in the ordinary course of business to employees of the Company and its Subsidiariesbusiness;
(fh) Investments existing on investments in respect of any marketable securities (determined at the Effective Date not otherwise permitted under this Agreementtime of acquisition thereof in a manner consistent with the most recent consolidated balance sheet of the Borrower) maintained by the Borrower or any Subsidiary;
(gi) investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(i) stock or obligations issued to the Borrower or any of its Subsidiaries by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrower or such Subsidiary in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; and (ii) Investments received in connection with the bona fide settlement of any defaulted Indebtedness indebtedness or other liability owed to the Company Borrower or any Subsidiary;
(hk) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownershipadvances of payroll payments to employees, developmentofficers, leasing, acquisition, construction or improvement directors and managers of the Corporate Headquarters;
(k) Investments Borrower or any Subsidiary incurred in joint ventures in an aggregate amount not to exceed the greater ordinary course of (i) $100,000,000 business and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference Investments held in trusts with respect to the Company’s financial statements most recently delivered pursuant obligations under supplemental executive retirement plans, deferred compensation plans or similar plans or obligations to Section 5.01(a) or (b) orofficers, if prior to the date directors, employees and managers of the delivery Borrower and its Subsidiaries incurred in the ordinary course of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))business;
(l) Investments, advances in addition to Investments permitted under clauses (a) through (j) connection with purchases of this Section 6.04 made after goods or services in the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Personsordinary course of business;
(m) Investments investments consisting of Liens permitted under Section 6.02;
(n) investments consisting of transactions permitted under Section 6.03;
(o) investments arising out of the receipt by the Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.03; and
(p) any other investment, loan or advance (other than acquisitions) so long as prior to making the aggregate outstanding amount of all such investments, loans and advances does not exceed $75,000,000. For purposes of covenant compliance, the amount of any Investment at any time shall be the amount actually invested (measured at the time made), without adjustment for subsequent changes in the value of such Investment, net of all returns on such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event up to the original amount of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07such Investment.
Appears in 1 contract
Samples: Credit Agreement (Qlogic Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will, nor will not, and will not it permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of related transactions) any Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesotherwise), except:
(a) Permitted Investments, subject to control agreements (with respect to Loan Parties) in favor of the Collateral Agent for the benefit of the Collateral Agent and the Lenders or otherwise subject to a perfected security interest in favor of the Collateral Agent for the benefit of the Collateral Agent and the Lenders;
(b) investments by the Company or a Subsidiary Loan Parties existing on the date hereof in the capital stock of its Subsidiaries;
(c) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company a Loan Party or any Subsidiaries to any other SubsidiaryLoan Party;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances other investments in existence on the date of this Agreement and described in Schedule 6.04;
(f) subject to Sections 4.2(a) and 4.4 of the Security Agreement, notes payable, or loans made stock or other securities issued by Account Debtors to a Loan Party pursuant to negotiated agreements with respect to settlement of such Account Debtor's Accounts in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementbusiness, consistent with past practices;
(g) Investments received extensions of credit in connection with the bona fide settlement nature of any defaulted Indebtedness accounts receivable or other liability owed to notes receivable arising from the Company sale or any Subsidiarylease of goods or services in the ordinary course of business;
(h) Permitted Acquisitionsinvestments by the Borrowers or their Subsidiaries in tooling so long as the amount by which such investments exceed the amount of the contractual obligations to reimburse the Borrowers or such Subsidiaries for such tooling is not greater than $20,000,000 at any time;
(i) Swap Agreements investments (including through issuances of a Guarantee) in (A) Joint Ventures not entered into for speculative purposesresulting in an Acquisition and (B) minority interests; provided that (I) the aggregate amount of all outstanding investments under this clause (i) made by Parent or any of its Subsidiaries (the amount of such investment to be determined as of the date of such investment) shall not exceed 15% of the consolidated net worth of Parent and (II) both immediately before and immediately after giving effect to such investment, no Default or Event of Default shall exist or result therefrom and so long as Availability exceeds $50,000,000 immediately before and immediately after giving effect to any Borrowing to fund such investment;
(j) Investments investments made in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not order to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto consummate Acquisitions; provided that (i) no Default or Event of Default has occurred exist or will result therefrom, (ii) the board of directors or equivalent governing body of the acquiree or the parent of the acquiree shall have given its written consent to or approval of such Acquisition, and is continuing (iii) Availability exceeds $50,000,000 immediately before and immediately after giving effect to any Borrowing to fund such Acquisition;
(k) other advances, loans, guarantees or would occur extensions of credit (excluding advances, loans, guarantees or extensions of credit of the types described in clause (i) above) in the ordinary course of business by Parent or any Subsidiary not at any time exceeding in the aggregate 5% of the consolidated net worth of Parent; provided that (i) at the time of such advance, guarantee or extension of credit and immediately after giving effect thereto, no Default or Event of Default shall exist or result therefrom and (ii) at any time when the Company aggregate of all such advances, loans, guarantees and extensions of credit exceeds $5,000,000, so long as Availability exceeds $50,000,000 immediately before and immediately after giving effect to any such advance, loan, guaranty or extension of credit and any related Borrowing;
(i) investments by Parent in any Subsidiary, (ii) investments by any Subsidiary of Parent in U.S. Borrower or any U.S. Subsidiary Guarantor, (iii) investments by Canadian Borrower or any Canadian Subsidiary in Canadian Borrower or any other Canadian Subsidiary, (iv) investments by any Subsidiary that is not a Canadian Subsidiary or a U.S. Subsidiary in compliance any Subsidiary and (v) investments by any Loan Party in any Subsidiary that is not a Loan Party (including, without limitation, loans, Guarantees, extensions of credit and capital contributions and whether made in the form of cash or equipment and other fixed assets of any Loan Party) in an aggregate amount at any time outstanding not exceeding $75,000,000 (excluding any such investments made at a time when the Cash Availability Trigger, immediately before and immediately after giving effect to such investment, exceeds $125,000,000);
(m) pledges or deposits required in the ordinary course of business in connection with workmen's compensation, unemployment insurance and other social security legislation;
(n) Investments constituting xxxxxxx money required in connection with an Acquisition;
(o) the Borrower and their Subsidiaries may organize new Subsidiaries so long as they comply with Section 6.075.11 hereof;
(p) any Loan Party may capitalize or forgive any Indebtedness owed to them by any other Loan Party;
(q) any Loan Party may cancel, forgive, set-off, or accept prepayments with respect to debt, other obligations and/or equity securities in the ordinary course of business and to the extent not otherwise prohibited by the terms of this Agreement (including, without limitation, Section 6.05 hereof).
(r) customary indemnification obligations incurred in connection with acquisitions or asset dispositions to the extent otherwise permitted hereunder; and
(s) Guarantees of surety obligations in the ordinary course of business and any guarantee of the performance of contractual obligations (other than the payment of money) of other Persons so long as such guaranty arises in the ordinary course of business.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. Hedging Agreements.
(1) The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a1) Permitted Investmentsexisting investments not otherwise permitted under this Agreement and described in Schedule 6.05(i) hereto;
(b2) investments made in accordance with the investment policy of the Borrower as set forth on Schedule 6.05(ii) hereto; as provided that any material amendment or other material modification to such policy is subject to the approval of the Administrative Agent in its reasonable discretion;
(3) investments by the Company or a Subsidiary Borrower in the capital stock of its Subsidiaries;
(c4) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other SubsidiaryPermitted Acquisitions;
(d5) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company Borrower or any Subsidiary;
(h6) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments advances or loans made in connection with the ownership, development, leasing, acquisition, construction or improvement ordinary course of business to employees of the Corporate Headquarters;
(k) Investments in joint ventures Borrower or any of its Subsidiaries in an aggregate outstanding amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))10,000,000;
(l7) Investmentsloans or advances to third party contractors, suppliers or customers in addition the ordinary course of business and consistent with past practice;
(8) loans or advances made by the Borrower to Investments any Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary;
(9) guarantees by the Borrower or any Subsidiary of obligations of the Borrower or any other Subsidiary which do not constitute Indebtedness;
(10) Guarantees constituting Indebtedness permitted under clauses by Section 6.02; and
(a11) through (j) of this Section 6.04 made after the Effective Date any other investments in, advances or loans to or Guarantees of, any Person in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons150,000,000;
(m2) Investments so long as prior The Borrower will not, and will not permit any of its Subsidiaries to, enter into any Hedging Agreement, other than Hedging Agreements entered into in the ordinary course of business (including, without limitation, Hedging Agreements in connection with the Borrower's stock repurchase program) to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default hedge or Event mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct of Default has occurred and is continuing its business or would occur and (ii) the Company is in compliance with Section 6.07management of its liabilities.
Appears in 1 contract
Samples: Credit Agreement (Claiborne Liz Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness Indebtedness or Equity Interests or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesotherwise), except:
(a) Permitted Investments, subject to Deposit Account Control Agreements in favor of the Administrative Agent for the benefit of the Secured Parties or otherwise subject to a perfected security interest in favor of the Administrative Agent for the benefit of the Secured Parties;
(b) investments by in existence on the Company or a Subsidiary date hereof and described in the capital stock of its SubsidiariesSchedule 6.04;
(c) investments by the Borrowers 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 Agreement (subject to the limitations applicable to Equity Interests of a Foreign Subsidiary referred to in Section 5.14) and (ii) the aggregate amount of investments by Loan Parties in Subsidiaries that are not Loan Parties (together with outstanding intercompany loans permitted under clause (ii) to the proviso to Section 6.04(d) and outstanding Guarantees permitted under clause (ii) to the proviso to Section 6.04(e)) shall not exceed $2,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(d) loans or advances made by the Company to, any Loan Party to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company to a Loan Party or any other Subsidiary, provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Security Agreement, and (ii) the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties (together with outstanding investments permitted under clause (ii) to the proviso to Section 6.04(c) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $2,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(de) Guarantees constituting Indebtedness permitted by Section 6.01, provided that 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 permitted under clause (ii) to the proviso to Section 6.04(d)) shall not exceed $2,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(ef) loans or advances or loans made by a Loan Party to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to employees a maximum of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement$250,000 at any one time outstanding;
(g) Investments notes payable, or stock or other securities issued by Account Debtors to a Loan Party pursuant to negotiated agreements with respect to settlement of such 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 a Borrower or consolidates or merges with a Borrower or any of the Subsidiaries (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 bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any SubsidiaryDispositions permitted by Section 6.05;
(hk) investments constituting deposits described in clauses (c) and (d) of the definition of the term "Permitted Encumbrances";
(l) Permitted Acquisitions;
(im) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction loans or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment advances made by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made HF Foods after the Effective Date in an aggregate amount to any Affiliate that is not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto Subsidiary, provided that (i) any such loans and advances shall be evidenced by a promissory note pledged pursuant to the Security Agreement, (ii) no Default or Event of Default has occurred and is continuing or would occur result immediately after giving effect to such loan or advance, (iii) immediately after giving effect to and at all times during the 90-day period immediately prior to the making of such loan or advance, the Working Capital Borrowers shall have Availability calculated on a pro forma basis after giving effect to such loan or advance of not less than the greater of (1) $12,500,000 and (2) 12.5% of the Revolving Commitment, (iv) immediately after giving effect to such loan or advance, the Fixed Charge Coverage Ratio for the most recently completed four fiscal quarter period prior to the date of such loan or advance for which the Borrowers are then required to have delivered interim financial statements to the Administrative Agent in accordance with the terms hereof, calculated on a pro forma basis, is not less than 1.10 to 1.00, and (v) HF Foods shall have delivered to the Administrative Agent a certificate in form and substance reasonably satisfactory to the Administrative Agent certifying as to the items described in (ii), (iii) and (iv) above and attaching calculations for items (iv) and (v); and
(n) investments in or used to consummate joint ventures (but not Acquisitions); provided that (i) any Equity Interests held by a Loan Party in such joint venture shall be pledged pursuant to the Security Agreement (to the extent such pledge is not prohibited by the applicable joint venture agreement, partnership agreement or other similar agreement with respect to such joint venture) and (ii) the Company is in compliance with Section 6.07aggregate amount of investments made pursuant to this clause (n) shall not to exceed $2,000,000 at any time outstanding.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) (i) Permitted Investments and (ii) so long as the aggregate outstanding amount thereof does not exceed $30,000,000 at any time during the term of this Agreement, Permitted Two-Year Investments;
(b) loans, advances or investments by existing on the Company or a Subsidiary in the capital stock of its SubsidiariesOriginal Effective Date and listed on Schedule 6.04;
(c) loans loans, advances or advances capital contributions made by the Company to, in or to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, in or to the Company or any other Subsidiary, provided that, unless constituting Permitted Foreign Reorganization Transfers, not more than $20,000,000 in loans, advances or capital contributions may be made and remain outstanding, during the term of this Agreement, by the Company or any Subsidiary Loan Party to a Person which is not a Subsidiary Loan Party;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(f) Permitted Acquisitions;
(g) Guarantees by the Company and any Subsidiary of leases entered into in the ordinary course of business by any Subsidiary as lessee;
(h) extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;
(i) investments in payroll, travel, relocation and similar advances or loans to employees and prospective employees to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business to employees of the Company and its Subsidiariesbusiness;
(fj) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments investments in or acquisitions of stock, obligations or securities received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed debts created in the ordinary course of business and owing to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments Subsidiary or in connection with the ownership, development, leasing, acquisition, construction or improvement satisfaction of the Corporate Headquartersjudgments;
(k) Investments investments in joint ventures equity securities and rights to acquire equity securities acquired as part of fees charged to clients or otherwise in an aggregate amount not to exceed connection with the greater performance of (i) $100,000,000 services by the Company and (ii) 2.75% its Subsidiaries in the ordinary course of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))business;
(l) Investmentswarrants, options and Equity Interests received by the Company or any Subsidiary as full or partial compensation for services rendered by the Company or any Subsidiary, all in addition to Investments permitted under clauses (a) through (j) the ordinary course of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Personsbusiness consistent with past practice;
(m) Investments so long as prior to making such Investment deposit accounts maintained in the ordinary course of business and after giving effect Cash Pooling Arrangements; and
(including giving effect on a pro forma basisn) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) other investments by the Company is in compliance with Section 6.07a cumulative aggregate amount not exceeding $15,000,000 during the term of this Agreement.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Heidrick & Struggles International Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not(a) No Loan Party will, and Anixter will not permit any member of its Subsidiaries the Consolidated Group to, purchasedirectly or indirectly make or commit to make any advance, hold loan, extension of credit or acquire (including pursuant to capital contribution, or purchase of any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) any capital stock, bonds, notes, debentures or other securities or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest investment in, any other Person, or purchase or otherwise acquire including any Affiliate (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to each such licensee from the Company or any of its Affiliatestransaction, an “Investment”), except:
(ai) Permitted InvestmentsInvestments by Anixter or any of its Subsidiaries in Cash Equivalents;
(bii) investments by Investments in existence on the Company or a Subsidiary date hereof and described in the capital stock of its SubsidiariesSchedule 6.4;
(ciii) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made Investments arising from sales in the ordinary course of business to employees of the Company and its Subsidiarieson customary trade terms;
(fiv) Investments existing constituting loans by Anixter or any Subsidiary of Anixter to its employees not in excess of an aggregate amount of $10,000,000 outstanding at any one time;
(v) the acquisition (in any transaction or series of related transactions) by Anixter or any of its Subsidiaries of substantially all of the assets or all of the Equity Interests of any Person, and Investments in connection with any such acquisition, in each case so long as (b) such acquisition is not a hostile or contested acquisition, (c) the business acquired in connection with such acquisition is not engaged, directly or indirectly, in any line of business other than the businesses in which Anixter or any of its Subsidiaries are engaged on the Effective Date not otherwise permitted under this Agreement;
and any business activities that are substantially similar or related thereto and reasonable extensions thereof, (gd) Investments received in connection with no Event of Default exists or would result therefrom, and (e) the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(h) Permitted AcquisitionsPayment Conditions are satisfied;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in any joint ventures and Investments in connection with the ownershippurchase of any other Person’s interest in any such joint ventures, development, leasing, acquisition, construction or improvement of which do not exceed $50,000,000 in the Corporate Headquartersaggregate outstanding at any one time;
(kii) Investments (other than those set forth on Schedule 6.4) in joint ventures notes receivable received in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered connection with transactions permitted pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)6.4(a)(iv);
(liii) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding by Anixter in any Person Subsidiary of Anixter that is a Loan Party or Personsby any Subsidiary of Anixter in Anixter;
(miv) Investments by Anixter in any Subsidiary of Anixter that is not a Loan Party (other than ARC), in each case so long as prior to making such Investment (f) no Event of Default exists or would result therefrom, and (g) after giving effect (including giving effect to the proposed Investment as if it occurred on a the first day of the Pro Forma Period, pro forma basis) thereto Combined Availability would be greater than 15% of the Combined Commitment at all times during the Pro Forma Period;
(i) no Default Investments constituting loans permitted by clause (iv) of Section 6.1(a) or Event of Default has occurred and is continuing or would occur and Accommodation Obligations permitted under Section 6.4(b); and
(ii) Investments in the Company is form of Swap Agreements permitted by Section 6.7;
(iii) investments of any Person existing at the time such Person becomes a Subsidiary of Anixter or consolidates or merges with Anixter or any of its Subsidiaries (including in compliance connection with an acquisition permitted by Section 6.076.4(a)(v)) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(iv) investments constituting deposits described in clause (c) of the definition of the term “Customary Permitted Liens”;
(v) Investments constituting Accommodation Obligations permitted by Section 6.4(b); and
(vi) Investments by any non-Loan Party in any other non-Loan Party.
Appears in 1 contract
Samples: Inventory Facility Credit Agreement (Anixter International Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by with respect to any Foreign Subsidiary, direct obligations of, or obligations the Company principal of and interest on which are unconditionally guaranteed by, the government of the country in which such Foreign Subsidiary is organized or a Subsidiary has its principal place of business, in each case maturing within one year from the date of acquisition thereof, so long as the aggregate amount of all such obligations for all Foreign Subsidiaries does not exceed $5,000,000 in the capital stock of its Subsidiariesaggregate at any time outstanding;
(c) loans, advances or investments existing on the date hereof by the Borrower and the Subsidiaries to or in their respective subsidiaries;
(d) investments, loans or advances made by the Company to, Borrower in or to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company Borrower or any other SubsidiarySubsidiary (provided that not more than $1,000,000 in investments, loans or advances or capital contributions may be made and remain outstanding, during the term of this Agreement, by any Loan Party to a Subsidiary which is not a Loan Party but provided further that investments, loans, advances or capital contributions made to (i) prepay the obligations under the Chinese Credit Facility on the Effective Date with the proceeds of the Loans and (ii) fund the operating expenses of Photronics China in the ordinary course of business consistent with past practice, in each case shall not be subject to the foregoing proviso);
(de) Guarantees constituting Indebtedness permitted by Section 6.016.01 and Guarantees by the Borrower of rental obligations or accounts payable of any Subsidiary;
(ef) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementbusiness;
(g) Investments received investments made in connection with the bona fide settlement a sale of any defaulted Indebtedness or other liability owed assets permitted by Section 6.03 to the Company extent of the non-cash consideration received by the Borrower or any a Subsidiary;
(h) Permitted Acquisitions[intentionally omitted];
(i) Swap Agreements not entered into for speculative purposesinvestments, loans and advances by the Borrower or any Subsidiary existing on the date hereof and set forth in Schedule 6.04;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;[intentionally omitted]; and
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of any other investment (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (bother than acquisitions), the most recent financial statements referred loan or advance (including investments made to in Section 3.04(a));
(lmeet minimum capital requirements of foreign jurisdictions) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making the aggregate amount of all such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event investments does not exceed $1,000,000 during the term of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07this Agreement.
Appears in 1 contract
Samples: Loan Agreement (Photronics Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(bi) investments by the Company or a Subsidiary Borrower in the capital stock of its SubsidiariesDomestic Subsidiaries and (ii) investments by the Borrower in the capital stock of its Foreign Subsidiaries which shall not at any time exceed $1,000,000 in the aggregate;
(c) loans or advances made by the Company to, Indebtedness permitted pursuant to Section 6.01(c) and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Company or any other SubsidiarySection 6.01(d);
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances the Subsidiary Guarantee;
(f) investments (including debt obligations) received in connection with the bankruptcy or loans made reorganization of suppliers and customers and in good faith settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementbusiness;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed loans and advancements to the Company or any Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement officers and employees of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 Borrower and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) orits Subsidiaries for moving, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investmentsrelocation and travel expenses and other similar expenditures, in addition to Investments permitted under clauses (a) through (j) each case in the ordinary course of this Section 6.04 made after the Effective Date business, in an aggregate amount not to exceed $500,000,000 500,000 at any time outstanding in (determined without regard to any Person write-downs or Personswrite-offs of such loans and advances);
(mh) Investments investments evidenced by Swap Agreements entered into pursuant to Section 6.05;
(i) investments consisting of credit sale contracts generated by retail customers of the Borrower or any of its Subsidiaries in the ordinary course of business in connection with the Credit Card Program Agreement; and
(j) so long as prior to making such Investment and no Default exists or would occur after giving effect thereto, other investments not otherwise permitted by clauses (including giving effect on a pro forma basisa) thereto through (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) above in an amount not to exceed $1,000,000 in the Company is in compliance with Section 6.07aggregate.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by with respect to any Foreign Subsidiary, direct obligations of, or obligations the Company principal of and interest on which are unconditionally guaranteed by, the government of the country in which such Foreign Subsidiary is organized or a Subsidiary has its principal place of business, in each case maturing within one year from the date of acquisition thereof, so long as the aggregate amount of all such obligations for all Foreign Subsidiaries does not exceed $5,000,000 in the capital stock of its Subsidiariesaggregate at any time outstanding;
(c) loans, advances or investments existing on the date hereof by the Company and the Subsidiaries to or in their respective subsidiaries;
(d) investments, loans or advances made by the Company to, in or to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company or any other SubsidiarySubsidiary (provided that not more than $10,000,000 in investments, loans or advances or capital contributions may be made and remain outstanding, during the term of this Agreement, by any Loan Party to a Subsidiary which is not a Loan Party but provided further that investments, loans, advances or capital contributions made to fund the operating expenses of Photronics China in the ordinary course of business consistent with past practice shall not be subject to the foregoing proviso);
(de) Guarantees constituting Indebtedness permitted by Section 6.016.01 and Guarantees by the Company of rental obligations or accounts payable of any Subsidiary;
(ef) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementbusiness;
(g) Investments received investments made in connection with a sale of assets permitted by Section 6.03 to the bona fide settlement extent of any defaulted Indebtedness or other liability owed to the non-cash consideration received by the Company or any a Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements Investments, loans and advances existing on the date hereof and set forth in Schedule 6.04 and extensions, renewals and replacements of any such investments, loans or advances with investments, loans or advances of a similar type that do not entered into for speculative purposesincrease the outstanding amount thereof;
(j) Investments investments by the Company or any Subsidiary made solely in connection with the ownership, development, leasing, acquisition, construction or improvement form of capital stock of the Corporate Headquarters;Company; and
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of any other investment (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (bother than acquisitions), the most recent financial statements referred loan or advance (including investments made to in Section 3.04(a));
(lmeet minimum capital requirements of foreign jurisdictions) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making the aggregate amount of all such Investment investments, loans and after giving effect advances, when aggregated with the aggregate consideration (including giving effect on a pro forma basisthe concurrent repayment or assumption of any indebtedness and related investments) thereto (i) no Default or Event paid in respect of Default has occurred and is continuing or would occur and (ii) all Permitted Acquisitions during the Company is in compliance with Section 6.07term of this Agreement, does not exceed $15,000,000 during the term of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Photronics Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or hold, acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of), make or otherwise 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, Investment in any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person all or any substantially all the assets of any other Person constituting or of a business unit unit, division, product line or the rights line of business of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesother Person, except:
(ai) Permitted InvestmentsInvestments in cash and Cash Equivalents;
(bii) investments by Investments existing on the Company or a Subsidiary in the capital stock of its SubsidiariesEscrow Date and set forth on Schedule 7.03(d);
(ciii) (A) Permitted Acquisitions and (B) other Investments by the Borrower and any of its Restricted Subsidiaries in their respective subsidiaries or joint ventures; provided that, the aggregate amount of such Permitted Acquisitions and Investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties and joint ventures (excluding all such Investments, loans, advances and Guarantees existing on the Escrow Date and permitted by clause (ii) above) pursuant to this clause (iii) and clauses (iv) and (v) below shall not exceed $150,000,000 at any time outstanding; provided, further, that in the case of any such Investment under the immediately preceding proviso, (A) no Default shall have occurred and be continuing or shall result therefrom and (B) no more than (i) $50,000,000 of such Investments shall consist of Intellectual Property, (ii) $75,000,000 of such Investments shall be made in joint ventures and (iii) $75,000,000 of such Investments shall be made in Unrestricted Subsidiaries; provided further, that the limitation described in this proviso shall not apply to any acquisition to the extent (A) any such consideration is financed with the proceeds of substantially concurrent sales of Equity Interests of (other than Disqualified Stock) or capital contributions to the Borrower or (B) the Person so acquired (or the Person owning the assets so acquired) becomes a Loan Party even though such Person owns Capital Stock in Persons that are not otherwise required to become Loan Parties, if, in the case of this clause (B), at least 60.0% of the Consolidated EBITDA of the Person(s) acquired in such acquisition (or the Persons owning the assets so acquired) (for this purpose and for the component definitions used in the definition of “Consolidated EBITDA”, determined on a consolidated basis for such Person(s) and the Restricted Subsidiaries) is generated by Person(s) that will become Loan Parties (i.e., disregarding any Consolidated EBITDA generated by Restricted Subsidiaries of such Persons that are not (or will not become) Loan Parties).
(iv) loans or advances made by the Company to, Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary; provided that (A) the Indebtedness resulting therefrom is permitted by Section 7.03(a)(iii) and (B) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (iii) above;
(v) Guarantees by the Company Borrower or any Restricted Subsidiary of Indebtedness or other obligations of, of the Borrower or any Subsidiary, Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and loans several coapplicant with respect to any letter of credit or advances made letter of guaranty); provided that the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, Loan Party shall be subject to the Company or any other Subsidiarylimitation set forth in clause (iii) above;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(gvi) Investments received in connection with the bona fide bankruptcy or reorganization of, or settlement of any defaulted Indebtedness or other liability owed to delinquent accounts and disputes with, customers and suppliers, in each case in the Company or any Subsidiaryordinary course of business;
(hvii) Investments in the form of equity commitments issued to or for the benefit of an Unrestricted Subsidiary in connection with the closing in escrow of an offering of Indebtedness by such Unrestricted Subsidiary the proceeds of which will be used to consummate the transactions set forth in the Odin Acquisition Agreement solely to the extent such Indebtedness will be Permitted AcquisitionsDebt of the Borrower or another Loan Party when the proceeds thereof are released from escrow and the aggregate principal amount of such Indebtedness does not exceed $1,100,000,000; provided that the amount of any such Investment shall not exceed (x) the amount of interest that would accrue on such Indebtedness through the maximum escrow period therefor plus (y) an amount sufficient to fund the upfront fees and original issue discount and any applicable premium with respect to such Indebtedness;
(iviii) Swap Agreements not entered into deposits, prepayments and other credits to suppliers, lessors and landlords made in the ordinary course of business;
(ix) advances by the Borrower or any Restricted Subsidiary to employees in the ordinary course of business consistent with past practices for speculative travel and entertainment expenses, relocation costs and similar purposes;
(jx) Investments made as a result of receipt of noncash consideration from a sale, transfer or other disposition of assets permitted under Section 7.03(e)(viii);
(xi) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement form of the Corporate HeadquartersSwap Agreements permitted under Section 7.03(m);
(kxii) Investments constituting deposits described in joint ventures clauses (iii) and (iv) of the definition of “Permitted Encumbrances” and endorsements of instruments for collection or deposit in the ordinary course of business;
(xiii) consummation of the Transactions and the Permitted Reorganization Transactions;
(xiv) Investments by a Restricted Subsidiary of the Borrower that is not a Loan Party in any Loan Party or in any other such Restricted Subsidiary that is also not a Loan Party;
(xv) other Investments in an amount not to exceed the Available Amount; provided that, at the time each such Investment is made no Default shall have occurred and be continuing or would result therefrom (or, in the case of an Investment that is necessary or advisable (as determined by the Borrower in good faith) for the consummation of a Limited Condition Acquisition, no Default exists as of the date the definitive acquisition agreements for such Limited Condition Acquisition are entered into);
(xvi) (x) other Investments in any Person in an aggregate amount not to exceed the greater of (i) $100,000,000 125,000,000 and (ii) 2.7511.0% of Total Consolidated Net Tangible Assets at any time outstanding and (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(ay) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to Investments in Section 3.04(a));
(l) Investments, any person engaged in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date a Permitted Business in an aggregate amount not to exceed the greater of (x) $500,000,000 125,000,000 and (y) 11.0% of Consolidated Net Tangible Assets (measured at any the time outstanding in any Person or Persons;of Investment); and
(mxvii) unlimited Investments so long as prior to making such Investment (1) no Unmatured Default or Default shall have occurred and be continuing or would result therefrom and (2) after giving effect (including giving effect to such Investment on a pro forma basisbasis the Senior Secured Net Leverage Ratio shall not exceed 2.75 to 1.00 (calculated as of the last day of the fiscal quarter of the Borrower then most recently ended for which financial statements have been delivered pursuant to Section 7.01(a) thereto (i) no Default or, prior to the first delivery pursuant to Section 7.01(a), Section 5.02(d)(i))). For the purposes of this Section, any unreimbursed payment by the Borrower or Event any Restricted Subsidiary for goods or services delivered to any Subsidiary, other than, in the case of Default has occurred and is continuing or would occur and (ii) the Company is a Restricted Subsidiary, itself, shall be deemed to be an Investment in compliance with Section 6.07such Subsidiary.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Wholly Owned Subsidiary prior to such merger or consolidationmerger) any capital stockCapital Stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Company or a Subsidiary Borrower and the Subsidiaries in the capital stock Capital Stock of its Subsidiaries;
(c) loans or advances made by the Company to, Borrower to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Company Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) Additional investments in capital projects (including, without limitation, investments relating to new contracts and expansions of existing facilities or construction of new facilities) and acquisitions (including any Debt incurred to make such investment or acquisition) provided there shall not exist a Default or Event of Default (both before and after giving effect to the completion of such additional investment);
(f) Loans or advances by the Borrower or loans made any of its Subsidiaries to employees in the ordinary course of business in an aggregate amount at any one time outstanding not to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementexceed $250,000;
(g) Investments received in connection with of the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company Borrower or any Subsidiary;Subsidiary otherwise permitted by Sections 6.01, 6.03 or 6.05; and
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount Additional investments not to exceed $500,000,000 5,000,000 existing at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07one time.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by with respect to any Foreign Subsidiary, direct obligations of, or obligations the Company principal of and interest on which are unconditionally guaranteed by, the government of the country in which such Foreign Subsidiary is organized or a Subsidiary has its principal place of business, in each case maturing within one year from the date of acquisition thereof, so long as the aggregate amount of all such obligations for all Foreign Subsidiaries does not exceed $5,000,000 in the capital stock of its Subsidiariesaggregate at any time outstanding;
(c) loans, advances or investments existing on the date hereof by the Company and the Subsidiaries to or in their respective subsidiaries;
(d) investments, loans or advances made by the Company to, in or to any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary toto the Company (provided that not more than $25,000,000 in investments, loans or advances or capital contributions may be made and Guarantees remain outstanding, during the term of this Agreement, by any Loan Party to a Subsidiary of obligations of, the Company or any other Subsidiary;which is not a Loan Party).
(de) Guarantees constituting Indebtedness permitted by Section 6.016.01 and Guarantees by the Company of rental obligations or accounts payable of any Subsidiary;
(ef) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreementbusiness;
(g) Investments received investments made in connection with a sale of assets permitted by Section 6.03 to the bona fide settlement extent of any defaulted Indebtedness or other liability owed to the non-cash consideration received by the Company or any a Subsidiary;
(h) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposesinvestments by the Company or any Subsidiary existing on the date hereof and set forth in Schedule 6.04;
(j) Investments in connection with investments by the ownership, development, leasing, acquisition, construction Company or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made any Subsidiary after the Effective Date in an aggregate amount Joint Ventures that do not to exceed $500,000,000 50,000,000 in the aggregate at any time outstanding in any Person or Persons;outstanding; and
(mk) Investments any other investment (other than acquisitions), loan or advance (including investments made to meet minimum capital requirements of foreign jurisdictions) so long as prior to making the aggregate amount of all such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event investments does not exceed $10,000,000 during the term of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Photronics Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) cash and Permitted Investments;
(b) investments by the Company or a Subsidiary in the capital stock of its SubsidiariesPermitted Acquisitions;
(c) investments, loans and advances by the Borrower and its Subsidiaries existing on the date hereof in or to other Persons (including investments, loans and advances by Borrower in or to its Subsidiaries), in each case as set forth on Schedule 6.04;
(d) investments, loans or advances made by the Company to, Borrower in or to any Subsidiary and made by any Subsidiary in or to the Borrower or any other Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans Borrower or advances made by any Subsidiary to, and Guarantees by any Subsidiary for the benefit of obligations of, the Company Borrower or any other Subsidiary; provided that at the time of any such investment, loan, advance by any Loan Party in, or Guarantee by any Loan Party for the benefit of, any Subsidiary that is not a Loan Party the aggregate amount outstanding of all such investments, loans, advances, and Guarantees shall not exceed the greater of (x) $25,000,000 and (y) an amount equal to 10% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last fiscal quarter included in the financial statements of the Borrower and its Subsidiaries referred to in Section 3.04), as applicable;
(de) the Assurex Acquisition;
(f) Guarantees constituting Indebtedness permitted by Section 6.01;
(eg) cash and marketable securities held in Deposit Accounts (as defined in the Security Agreement) or Securities Accounts (as defined in the Security Agreement), which are subject to control agreements to the extent required by the Security Agreement;
(h) investments in negotiable instruments for collection in the ordinary course of business;
(i) advances made in connection with purchases of goods or loans made services in the ordinary course of business;
(j) investments received in settlement of delinquent obligations to the Borrower or any Subsidiary effected in the ordinary course of business or owing to employees the Borrower or any Subsidiary as a result of any bankruptcy or insolvency proceeding involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company Borrower or any Subsidiary;
(hk) investments, loans, advances and Guarantees existing on the Effective Date and set forth on Schedule 6.04;
(l) investments arising under Swap Agreements entered into in compliance with Section 6.05;
(m) loans or advances made by the Borrower or any Subsidiary to its employees in the ordinary course of business consistent for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $4,000,000 in the aggregate at any one time outstanding;
(n) investments, loans and advances owned by, and Guarantees made by, any Person existing at the time such Person becomes a Subsidiary of the Borrower or consolidates or merges with the Borrower or any of its Subsidiaries (including in connection with a Permitted AcquisitionsAcquisition) so long as such investments, loans, advances and Guarantee were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger;
(i) Swap Agreements not entered into endorsements for speculative purposescollection or deposit in the ordinary course of business and consistent with past practice and (ii) extensions of trade credit in the ordinary course of business;
(jp) Investments investments by any Loan Party or any Subsidiary of a Loan Party in any Subsidiary of such Person in such amount which is required by law to maintain a minimum net capital requirement or as may otherwise be required by applicable law or regulation;
(q) extensions of credit consisting of accounts receivable or notes receivable arising from the sale or lease of goods in the ordinary course of business of the Borrower or any Subsidiary;
(r) investments held and loans and advances made by a Person acquired in a Permitted Acquisition or an acquisition that is otherwise permitted hereunder to the extent that none of such investments, loans or advances were made in connection with the ownership, development, leasing, acquisition, construction or improvement contemplation of such acquisition and were in existence as of the Corporate Headquartersdate of consummation of such acquisition;
(ks) Investments investments by the Borrower or any of its Subsidiaries for which the consideration consists solely of Equity Interests of the Borrower;
(t) any endorsement of a check or other medium of payment for deposit or collection, or any similar transaction, in joint ventures each case in an the ordinary course of business; and
(u) any other investment, loan, advance or Guarantee (other than acquisitions) so long as during the term of this Agreement, at the time of making any such Investment, loan, advance or Guarantee, the aggregate amount of all such investments, loans, advances and Guarantees which are outstanding do not exceed an amount equal to exceed the greater of (ix) $100,000,000 25,000,000 and (iiy) 2.7510% of Consolidated Total Assets (determined at as of the time end of each such investment by reference to the Company’s most recent fiscal quarter for which financial statements most recently shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (b) or, if prior to the date delivery of any such financial statements, the last fiscal quarter included in the financial statements of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements Borrower and its Subsidiaries referred to in Section 3.04(a3.04));
(l) Investments, in addition to Investments permitted under clauses (a) through (j) of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;
(m) Investments so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and (ii) the Company is in compliance with Section 6.07applicable.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing, but excluding purchases of capital stock or other securities of the Company, and options, warrants or other rights to acquire any such capital stock or other securities, to the extent permitted under Section 6.06) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) Receivables owing to the Company or any of its Subsidiaries arising from sales of inventory and delivery of services under usual and customary terms in the ordinary course of business;
(c) advances not to exceed $5,000,000 outstanding at any time to employees of the Company and its Subsidiaries to meet expenses incurred by such employees in the ordinary course of business;
(d) Loans in the ordinary course of business and generally consistent with past practices, to officers, directors and employees in connection with the granting of stock options or as incentive or bonus compensation;
(e) (i) investments by the Company or a Subsidiary any of its Subsidiaries existing on the date hereof in the capital stock of their respective Subsidiaries, (ii) investments by the Company or any of its Subsidiaries in the capital stock of its Subsidiariesrespective Subsidiaries which are Subsidiary Guarantors, whether now existing or hereafter created or established and (iii) loans and advances by the Company or any of its Subsidiaries to any other Subsidiaries outstanding on the date hereof, including the conversion of any such loans or advances to Equity Interests in the Subsidiaries obligated with respect thereto;
(cf) investments, loans and advances from the Irish Subsidiary to, and other investments of the Irish Subsidiary in, the Company, any Subsidiary of the Company or any Joint Venture provided that (x) the aggregate outstanding amount of investments, loans and advances from the Irish Subsidiary to the Company, any Subsidiary and any Joint Venture less (y) the aggregate outstanding amount of investments, loans and advances from the Company, any Subsidiary and any Joint Venture to the Irish Subsidiary, does not exceed $100,000,000 at any time;
(g) investments, loans, advances and Guarantees not otherwise permitted by this Section made by the Company to, to or in support of the obligations of any Subsidiary and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary to or in support of the obligations of, of the Company or any other SubsidiarySubsidiary (provided that not more than an aggregate of $100,000,000 in investments, loans, advances or Guarantees permitted solely by this paragraph (g) may be outstanding at any time, during the term of this Agreement, by any Loan Party to or in support of the obligations of a Person that is not a Loan Party);
(dh) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Company and its Subsidiaries;
(f) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Company or any Subsidiary;
(hi) Permitted Acquisitions;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownershipTonsan Acquisition and investments, development, leasing, acquisition, construction loans and advances by the Company or improvement of any Subsidiary to any Subsidiary to consummate the Corporate HeadquartersTonsan Acquisition;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))Existing Joint Ventures;
(l) Investments, in addition contributions of Permitted Receivables Facility Assets and cash deemed received from proceeds of Permitted Receivables Facility Assets to Investments permitted under clauses (a) through (j) any Receivables Entity to the extent required or made pursuant to Permitted Receivables Facility Documents or to the extent necessary to keep such Receivables Entity properly capitalized to avoid insolvency or consolidation with a Loan Party or any of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons;Subsidiaries; and
(m) Investments any other investment, loan, advance or Guarantee not otherwise permitted by this Section (other than acquisitions, but including investments or capital contributions by the Company or any Subsidiary in Joint Ventures) so long as prior to making the aggregate amount outstanding of all such Investment other investments, loans, advances and after giving effect (including giving effect on a pro forma basis) thereto Guarantees does not exceed $125,000,000 during the term of this Agreement. For purposes of determining compliance with this Section 6.04, (i) no Default the amount of any investment, loan or Event advance shall be the amount actually invested, loaned or advanced, without adjustment for subsequent increases or decreases in the value of Default has occurred and is continuing such investment, loan or would occur advance, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of such investment, loan or advance and (ii) if an investment, loan or advance meets the Company is criteria of more than one of the types of investments, loans and advances described in compliance with Section 6.07the above clauses, the Company, in its reasonable discretion, shall classify, and from time to time may reclassify, such investment, loan or advance and only be required to include the amount and type of such investment, loan or advance in one of such clauses.
Appears in 1 contract
Samples: Credit Agreement (Fuller H B Co)
Investments, Loans, Advances, Guarantees and Acquisitions. The Company No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly Loan Party and a wholly-owned Subsidiary prior to such merger or consolidationmerger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Company or any of its Affiliatesunit, except:
(a) Permitted Investmentsinvestments in cash and Cash Equivalents;
(b) investments in existence on the date of this Agreement and described in Schedule 6.04;
(c) investments by Holdings, the Company or a Subsidiary Borrower and its Restricted Subsidiaries in the capital stock of its their respective Restricted Subsidiaries; provided, that the aggregate amount of investments (together with the aggregate amount of loans and advances described in Section 6.04(d)), as of any date of determination, made by Holdings, the Borrower or the other Loan Parties in the capital stock of their respective Restricted Subsidiaries that are not Loan Parties does not at any time exceed an amount equal to $10 million (with the amount of any such investments being the original cost of such investment, less all repayments, returns, dividends and distributions, in each case received in cash in respect of such investment and less all liabilities effectively assumed by a person other than any Loan Party or any Restricted Subsidiary thereof in connection with the sale of any such investment);
(cd) loans or advances made by the Company to, and Guarantees by the Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations ofHoldings, the Company Borrower or any of its Restricted Subsidiaries to Holdings, the Borrower or any other Restricted Subsidiary; provided, that the aggregate amount of loans and advances (together with the aggregate amount of investments described in Section 6.04(c)) made by Holdings, the Borrower or the other Loan Parties to Restricted Subsidiaries that are not Loan Parties that are at any time outstanding does not, as of any date of determination, exceed an amount equal to $10 million;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) Permitted Acquisitions;
(g) (i) loans and advances to employees of the Borrower or loans any Restricted Subsidiaries in the ordinary course of business (including to finance the purchase of Equity Interests of the Borrower) in an aggregate amount for the Borrower and its Restricted Subsidiaries not to exceed $5 million at any time outstanding and (ii) payroll, travel, entertainment, relocation and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses of the Borrower or any Restricted Subsidiary for accounting purposes and that are made in the ordinary course of business to employees of the Company and its Subsidiariesbusiness;
(fh) Investments existing on the Effective Date not otherwise permitted under this Agreement;
(g) Investments investments received in connection with the bona fide bankruptcy or reorganization of any Person or in settlement of obligations of, or disputes with, any defaulted Indebtedness or other liability owed to Person arising in the Company or any Subsidiary;
(h) Permitted Acquisitionsordinary course of business;
(i) Swap Agreements not entered into for speculative purposespermitted by Section 6.06;
(j) Investments investments consisting of extensions of credit in connection with the ownership, development, leasing, acquisition, construction nature of accounts receivable or improvement notes receivable arising from the grant of trade credit in the Corporate Headquartersordinary course of business;
(k) Investments investments made in joint ventures and Unrestricted Subsidiaries in an aggregate outstanding amount not to exceed the greater of (i) $100,000,000 15.0 million and (ii) 2.7515% of Total Assets EBITDA for the most recently ended Reference Period for which financial statements have been (determined at the time of each such investment by reference or were required to be) delivered to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a))Administrative Agent at any time outstanding;
(l) Investmentsto the extent constituting investments, performance guarantees of obligations of the Borrower’s Restricted Subsidiaries in addition to Investments permitted under clauses (a) through (j) the ordinary course of this Section 6.04 made after the Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Personsbusiness;
(m) Investments in addition to investments otherwise expressly permitted by this Section 6.04, investments, loans and advances by the Borrower or any of its Restricted Subsidiaries in an aggregate amount (valued at cost) not to exceed the greater of (i) $15.0 million and (ii) 15% of EBITDA for the most recently ended Reference Period for which financial statements have been (or were required to be) delivered to the Administrative Agent at any time outstanding;
(n) additional investments by the Borrower or any of its Restricted Subsidiaries, so long as prior to making such Investment and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would occur and immediately result therefrom, (ii) the Company is Total Net Leverage Ratio for the most recently ended Reference Period for which financial statements have been (or were required to be) delivered to the Administrative Agent does not exceed 6.00 to 1.00 on a pro forma basis (after giving effect to the making of such investment);
(o) 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;
(p) investments resulting from pledges or deposits described in clause (c) or (d) of the definition of the term “Permitted Encumbrance”;
(q) investments made as a result of the receipt of noncash consideration from a sale, transfer, lease or other disposition of any asset in compliance with Section 6.076.05;
(r) 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;
(s) mergers and consolidations permitted under Section 6.03 that do not involve any Person other than the Borrower and Restricted Subsidiaries that are wholly-owned Restricted Subsidiaries; and
(t) to the extent constituting Investments, advances to or from a Foreign Subsidiary in respect of transfer pricing and cost-sharing arrangements (i.e. “cost-plus” arrangements) in connection with the services provided by Foreign Subsidiary to a Loan Party.
Appears in 1 contract
Samples: Credit Agreement (Sailpoint Technologies Holdings, Inc.)
