Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”), except: (a) Permitted Investments; (i) Investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e); (c) Guarantees constituting Indebtedness permitted by Section 6.01; and (d) advances to officers, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes. (e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Samples: Credit Agreement (GoPro, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 mergermerger 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 (all of the foregoingcollectively, “Investments”), except:
(a) Permitted Investments;
(ib) Permitted Acquisitions;
(c) Investments by the Borrower Company and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereof, hereof in the capital stock of its Subsidiaries;
(iid) additional Investments made by the Borrower Company in or to any Subsidiary and its Subsidiaries made by any Subsidiary in Loan Partiesor to the Company or any other Subsidiary (provided, except as provided in clause (iiig) additional below, that the amount in Investments that may be made and remain outstanding, at any time, by Subsidiaries of the Borrower that are not Loan Parties in other to Subsidiaries that which are not Loan Parties; and , shall not exceed the greater of (ivi) so long $20,000,000 or (ii) 5.0% of Consolidated Tangible Assets, determined as no Default has occurred and is continuing of the most recent date for which the Company’s Financials have been delivered under Section 5.01 (or, if prior to the date of the first financial statements to be delivered pursuant to Section 5.01(a) or would result from such Investment and both immediately prior and after giving effect to such Investment(b), the Borrower is most recent financial statements referred to in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e3.04(a)));
(ce) Guarantees constituting Indebtedness permitted by Section 6.01; and
(df) advances to officers, directors and employees of any other Investment (other than Acquisitions) so long as the Borrower and Subsidiaries in an aggregate amount of all such Investments does not to exceed $2,000,000 at 30,000,000 during the term of this Agreement. For purposes of compliance with Sections 6.04(d) and (f), the amount of any time outstandinginvestment shall be the amount initially invested, without adjustment for travelsubsequent increases or decreases in the value of such Investment, entertainmentless any amount paid, relocation and analogous ordinary business purposesrepaid, returned, distributed or otherwise received in cash in respect of such Investment.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all of the foregoingeach such action, an “InvestmentsInvestment”), except:
(a) Permitted Investmentsinvestments in cash and Cash Equivalents;
(ib) Investments investments in existence 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 by the terms of such Investment or as otherwise permitted by this Section 6.04;
(c) investments by the Borrower and its Subsidiaries in the capital stock of 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) (excluding any amounts relating to the processing of payments on the Borrower’s and its Subsidiaries’ payments platform and any intercompany accounts payable in connection therewith) and amounts described in Section 6.04(l)(iv) or in clause (h) of the definition of “Permitted Acquisition”), as of any date of determination, made by the Borrower or the other Loan Parties in the capital stock of their respective Subsidiaries outstanding who are not Loan Parties does not at any time exceed an amount equal to $10.0 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 Subsidiary thereof in connection with the sale of any such investment);
(d) loans or advances made by the Borrower or any of its Subsidiaries to the Borrower or any other Subsidiary; provided, that the aggregate amount of loans and advances, excluding any amounts relating to the processing of payments on the Borrower’s and its Subsidiaries’ payments platform and any intercompany accounts payable in connection therewith, together with the aggregate amount of investments described in Section 6.04(c) or Section 6.04(l)(iv) and amounts described in clause (h) of the definition of “Permitted Acquisition”, 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 hereofof determination, exceed an amount equal to $10.0 million;
(e) Guarantees constituting Indebtedness permitted by Section 6.01 and guarantees of ordinary course commercial obligations not constituting Indebtedness;
(f) (i) Permitted Acquisitions and (ii) additional Investments by of any Person in existence at the time such Person becomes a Subsidiary; provided, that such Investment was not made in connection with or anticipation of such Person becoming a Subsidiary and any modification, replacement, renewal or extension thereof;
(g) loans and advances to employees of the Borrower or any Subsidiaries in the ordinary course of business to finance the purchase of Equity Interests (other than Disqualified Equity Interests) of the Borrower in an aggregate amount for the Borrower and its Subsidiaries not to exceed $5,000,000 at any time outstanding;
(h) investments received in Loan Partiesconnection 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;
(i) Swap Agreements permitted by Section 6.06;
(j) 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;
(k) to the extent constituting investments, performance guarantees of obligations of the Borrower’s Subsidiaries in the ordinary course of business;
(l) other Investments by the Borrower or any of its Subsidiaries so long as, (iiii) additional Investments by Subsidiaries no Event of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from therefrom, (ii) after giving effect to such Investment (including the incurrence, assumption or acquisition of any Indebtedness in connection therewith) the Borrower shall be in pro forma compliance with an Adjusted Quick Ratio of not less than 1.50 to 1.00 for the most recently ended Reference Period for which financial statements have been (or were required to be) delivered to the Administrative Agent and the Borrower shall have delivered to the Administrative Agent reasonably detailed calculations demonstrating such compliance, (iii) either (A) both immediately prior before and after giving effect to such Investment, the Liquidity of the Borrower and its Subsidiaries is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) greater than $17,500,000 plus 125.0 million or (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments all such Investments that do not satisfy sub-clause (iii)(A) (together with the aggregate amount of Acquisitions described in sub-clause (g)(ii)(B) of the definition of “Permitted Acquisitions”) does not exceed $20.0 million in any fiscal year and (iv) the aggregate amount of all such Investments in any Persons that are not or which do not become Loan Guarantors (together with the aggregate amount of investments, loans or advances described in Sections 6.04(c) and (d) and amounts described in clause (h) of the definition of “Permitted Acquisition”) shall not exceed $10.0 million in the aggregate;
(m) Investments made as a result of the receipt of non-cash consideration from Disposition, of any asset in compliance with Section 6.07(e)6.05;
(cn) Guarantees constituting Indebtedness permitted by Section 6.01; and
(d) payroll, travel and similar advances to officers, directors and employees of the Borrower or any Subsidiary to cover matters that are expected at the time of such advances to be treated as expenses of the Borrower or such Subsidiary for accounting purposes and that are made in the ordinary course of business;
(o) 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 $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.10.0 million during the term of this Agreement;
(ep) Loans to employees the extent categorized as an investment, contingent chargeback obligations arising from the Borrower or its Subsidiaries acting as “merchant of record” under applicable credit card payment processes, as incurred in the ordinary course of business of the Borrower and its Subsidiaries; and
(q) Investments by Borrower in cumulative aggregate amount not to exceed $8,500,000 at any timeForeign Subsidiaries, in connection with the ordinary course of business, for ordinary, current and necessary operating expenses that are reasonably expected to be due and payable within thirty (30) days of any such employees’ exercise Investment, so long as no Event of their stock options Default exists at the time of such investment and payment of related taxes thereonwould not exist after giving effect to any such investment.
Appears in 1 contract
Samples: Credit Agreement (Flywire Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold purchase or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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 Indebtedness of any other interest in, any other Person, Person or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person (other than inventory acquired in the ordinary course of business) constituting a business unit division, product line or line of business or all or substantially all of the property and assets or business of another Person (all of the foregoing, foregoing being collectively called “Investments” and, each individually an “Investment”), except:
(a) Permitted Investments and Permitted Foreign Investments;
(b) Investments existing on, or contractually committed on, the Effective Date and set forth on Schedule 6.04 to the Disclosure Letter;
(c) Investments existing on the Effective Date in Restricted Subsidiaries;
(d) Investments in Persons that, immediately prior to such Investments, are Loan Parties;
(e) Investments (i) by any Restricted Subsidiary that is not a Loan Party in the Borrower or any other Restricted Subsidiary and (ii) by the Borrower or any Restricted Subsidiary that is a Loan Party in any Restricted Subsidiary that is not a Loan Party not to exceed the greater of $50,000,000 and 10% of Consolidated Total Assets for the most recently ended Test Period after giving effect to the making of such Investment on a Pro Forma Basis;
(f) Investments held by any Person acquired in any Permitted Acquisition at the time of such Permitted Acquisition (and not acquired in contemplation of the Permitted Acquisition);
(g) Investments constituting an acquisition of the Equity Interests in a Person that becomes a Restricted Subsidiary or all or substantially all of the assets (or all or substantially all of the assets constituting a business unit, division, product line or line of business) of any Person; provided that (i) no Event of Default shall have occurred and be continuing or would occur as a result thereof, (ii) the Borrower and its Restricted Subsidiaries in their respective Subsidiaries outstanding on the date hereofshall, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after upon giving effect to such Investmentacquisition, the Borrower is be in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of 5.11 and Section 6.03(b) and (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2iii) the aggregate amount of permitted Restricted Payments all acquisition consideration paid by Loan Parties in connection with Investments and acquisitions made in reliance on this clause (g) attributable to the acquisition of acquired entities that do not become Guarantors shall not exceed (together with Investments made in reliance on Section 6.04(e)) at the time any such Investment is made the greater of $50,0000,000 and 10% of Consolidated Total Assets for the most recently ended Test Period after giving effect to the making of such Investment on a Pro Forma Basis and (iv) the Borrower shall be in compliance on a Pro Forma Basis (immediately after giving effect to any such acquisition or Investment and the incurrence or assumption of any Indebtedness in connection therewith) with the financial covenant set forth in Section 6.07(e6.11 (each, a “Permitted Acquisition”);.
(ch) Guarantees constituting Indebtedness permitted by Section 6.01; andprovided that a Loan Party shall not Guarantee any Indebtedness of a Restricted Subsidiary that is not a Loan Party pursuant to this paragraph (h);
(di) Investments (a) 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 (b) of noncash consideration received by the Borrower or any Restricted Subsidiary in connection with a Disposition of assets otherwise permitted by Section 6.05;
(j) accounts receivable and extensions of trade credit arising in the ordinary course of business;
(k) Investments held by any Restricted Subsidiary at the time it becomes a Subsidiary in a transaction permitted by this Section 6.04;
(l) advances to officers, directors and employees of the Borrower and any Restricted Subsidiary for travel arising in the ordinary course of business;
(m) loans to officers, directors, consultants and employees of the Borrower or any Restricted Subsidiary, not to exceed $3,000,000 in the aggregate at any one time outstanding;
(n) promissory notes and other noncash consideration received by the Borrower and its Restricted Subsidiaries in connection with any Disposition permitted hereunder;
(o) advances in the form of prepayments of expenses, so long as such expenses were incurred in the ordinary course of business and are paid in accordance with customary trade terms of the Borrower or any of its Restricted Subsidiaries;
(p) Guarantees by the Borrower or any of its Restricted Subsidiaries of obligations of any Restricted Subsidiary or the Borrower incurred in the ordinary course of business and not constituting Indebtedness;
(q) Investments consisting of Indebtedness, Liens, fundamental changes, Dispositions and Restricted Payments permitted (other than by reference to this Section 6.04(q)) under Sections 6.01, 6.02, 6.03, 6.05 and 6.08, respectively;
(r) other Investments so long as on the date such Investment is made, (i) no Event of Default shall have occurred and be continuing and (ii) the Total Leverage Ratio as of the last day of the most recent Test Period for which financial statements have been delivered pursuant to Section 5.01 or Section 4.01(j) at the time such Investment is made on a Pro Forma Basis is no greater than 2.00 to 1.00;
(s) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(t) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of the Borrower or with Net Proceeds of any issuance of Qualified Equity Interests of the Borrower;
(u) (i) intercompany advances arising from their cash management, tax and accounting operations and (ii) intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business;
(i) Investments represented by Swap Agreements permitted under Section 6.01(o) and (ii) the purchase by the Borrower of any forward purchase contract, accelerated share repurchase contract or other derivative in respect of its Equity Interests, provided that any repurchase under such contract or derivative shall be permitted by Section 6.06 at the time such contract is entered into or such derivative is purchased;
(w) so long as no Event of Default has occurred and is continuing or would result therefrom, other Investments in an amount not to exceed the Available Amount;
(x) other Investments; provided that at the time any such Investment is made the aggregate amount of Investments made in reliance on this clause (x) shall not exceed the greater of $150,000,000 and 20% of Consolidated Total Assets;
(y) Investments in Joint Ventures, in an aggregate amount not to exceed the greater of $2,000,000 at any 100,000,000 and 15% of Consolidated Total Assets for the most recently ended Test Period as of such time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.after giving effect to the making of such Investment on a Pro Forma Basis;
(ez) Loans to employees of [reserved]; and
(aa) the purchase by the Borrower of any Permitted Call Spread Option; provided that no Default or Event of Default has occurred and is continuing or would result therefrom. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, less any return of capital, without adjustment for subsequent increases or decreases in cumulative aggregate amount not to exceed $8,500,000 at any timethe value of such Investment. For the avoidance of doubt, the acquisition by the Borrower and its Restricted Subsidiaries of Intellectual Property in connection with such employees’ exercise the ordinary course of their stock options respective businesses shall not be considered an Investment. To the extent an Investment is permitted to be made by a Loan Party directly in any Restricted Subsidiary or any other Person who is not a Loan Party (each such Restricted Subsidiary or other Person, a “Target Person”) under any provision of this Section 6.04, such Investment may be made by advance, contribution or distribution by a Loan Party to a Restricted Subsidiary (and payment further advanced, contributed or distributed to another Restricted Subsidiary) for purposes of related taxes thereonmaking the relevant Investment in (or effecting an acquisition of) the Target Person without constituting an Investment for purposes of Section 6.04 (it being understood that such Investment must satisfy the requirements of, and shall count towards any thresholds in, a provision of this Section 6.04 as if made by the applicable Loan Party directly in the Target Person). For purposes of determining compliance with this Section 6.04, if any Investment (or a portion thereof) would be permitted pursuant to one or more provisions described above, the Borrower may divide and classify such Investment (or a portion thereof) in any manner that complies with this covenant. For the avoidance of doubt, any Investments in compliance with Section 6.04(e), (g), (x) or (y) shall continue to be permitted hereunder, regardless of any subsequent decrease in Consolidated Total Assets.
Appears in 1 contract
Samples: Credit Agreement (Roku, Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger) any capital 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”or material portion thereof), except:
(a) Permitted Investments;
(ib) Investments with respect to any Foreign Subsidiary, direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the government of the country in which such Foreign Subsidiary is organized or 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 aggregate at any time outstanding;
(c) loans, advances or investments existing on the date hereof by the Borrower and its the Subsidiaries to or in their respective Subsidiaries outstanding on subsidiaries;
(d) loans or advances made after the date hereof, (ii) additional Investments Effective Date by the Borrower and its Subsidiaries in Loan Partiesto any Wholly-Owned Subsidiary or by any Wholly-Owned Subsidiary to the Borrower or any other Wholly-Owned Subsidiary; provided that, (iii) additional Investments by Subsidiaries upon request of the Borrower that are not Loan Parties Required Lenders, such loans or advances shall be evidenced by a promissory note in other Subsidiaries that are not Loan Parties; form and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect substance reasonably acceptable to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)Required Lenders;
(ce) Guarantees constituting Indebtedness permitted by Section 6.01; and;
(df) advances to officersinvestments received in connection with the bankruptcy or reorganization of, directors or settlement of delinquent accounts and employees disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) Permitted Business Acquisitions by any Consolidated Entity so long as (i) if the consideration for such Permitted Business Acquisition consists solely of Capital Stock of the Borrower, (A) the aggregate market value of such Capital Stock paid by the Borrower and the Subsidiaries in an aggregate amount respect of such Permitted Business Acquisition does not exceed 50% of Consolidated Net Worth determined as of the end of the most recently ended fiscal quarter and (B) the Leverage Ratio after giving effect to such Permitted Business Acquisition does not exceed and is not projected to exceed 2.25 to 1.00, and (ii) in all other circumstances, unless otherwise approved by the Required Lenders, (A) the aggregate cash and non-cash consideration (including the concurrent repayment or assumption of any Indebtedness) paid by the Borrower and the Subsidiaries in respect of any such Permitted Business Acquisition does not exceed $2,000,000 20,000,000 and (B) the Leverage Ratio after giving effect to such Permitted Business Acquisition does not exceed and is not projected to exceed 1.75 to 1.00;
(h) investments by the Borrower or any Subsidiary existing on the date hereof and set forth in Schedule 6.04;
(i) investments that do not exceed $500,000 in the aggregate at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, outstanding made in connection with such employees’ exercise a sale of their stock options and payment of related taxes thereon.assets permitted by Section
Appears in 1 contract
Samples: Credit Agreement (Lydall Inc /De/)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 (all of the foregoing, “Investments”)unit, except:
(a) cash and Permitted Investments;
(b) Permitted Acquisitions and Limited Equity Acquisitions; provided, that (i) Investments the aggregate consideration paid in respect of such Permitted Acquisition or Limited Equity Acquisition, when taken together with the aggregate consideration paid in respect of all other Permitted Acquisitions and paid or contributed in respect of all other Limited Equity Acquisitions, does not exceed $275,000,000 during any twelve-month period, (ii) the aggregate consideration paid in respect of any Permitted Acquisition does not exceed $150,000,000, (iii) the aggregate consideration paid in respect of all Limited Equity Acquisitions does not exceed $50,000,000 during any twelve-month period, and (iv) the Leverage Ratio, calculated on a Pro Forma Basis after giving effect to such acquisition, does not exceed 3.00 to 1.00;
(c) investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereofhereof in the capital stock of its Subsidiaries;
(d) investments, (ii) additional Investments loans or advances made by the Borrower in or to any Subsidiary and its Subsidiaries made by any Subsidiary in Loan Parties, (iii) additional Investments by Subsidiaries of or to the Borrower or any other Subsidiary (provided that are 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 in other to Subsidiaries that which are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e);
(ce) Guarantees constituting Indebtedness permitted by Section 6.01; and;
(df) extended payment terms to customers of the Borrower and any Subsidiary in the ordinary course of business and consistent with past practices;
(g) investments in the form of promissory notes and other non-cash consideration received by the Borrower or any Subsidiary in connection with any disposition or discount of accounts receivable to the extent permitted under Section 6.03(a)(v);
(h) loans and advances to officers, directors (i) distributors of the Safeguard services and product lines of the Borrower and its Subsidiaries (other than with respect to a Permitted Safeguard Distributor Transaction) and (ii) officers and employees of the Borrower and or its Subsidiaries in an accordance with prior practices, so long as (x) the aggregate amount of all loans and advances made pursuant to clause (h)(i) above does not to exceed $2,000,000 1,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.(y) the aggregate amount of all loans and advances made pursuant to this Section 6.04(h) does not exceed $5,000,000 at any time;
(ei) Loans to employees investments consisting of the purchase, repurchase, redemption or acquisition of Equity Interests of the Borrower or any Subsidiary permitted under Section 6.07, provided that such Equity Interests so purchased, repurchased, redeemed or acquired are promptly retired and cancelled, other than Equity Interests of the Borrower consisting of capital stock which may be held by the Borrower as treasury stock;
(j) any purchase, repurchase or acquisition by the Borrower or any other Subsidiary of outstanding loans or advances owed by the Borrower to any Subsidiary or owed by any Subsidiary to the Borrower or any other Subsidiary, provided that any such purchase, repurchase or acquisition by a Loan Party from a Subsidiary that is not a Subsidiary Guarantor shall comply with Section 6.06 (without giving effect to the exception under Section 6.06(b));
(k) investments in cumulative Swap Agreements permitted under Section 6.05;
(l) investments of advance payments received from customers to the extent such advance payments shall be permitted under Section 6.01(k);
(m) investments existing on the Amendment No. 2 Effective Date and set forth on Schedule 6.04;
(n) investments, advances or loans having a bona fide purpose directly related to effecting any Permitted Safeguard Distributor Transaction (as determined by the Borrower in its commercially reasonable judgment acting in good faith), including, without limitation, any Permitted Safeguard Sale Consideration; and
(o) any other investment, loan or advance (other than acquisitions) so long as the aggregate amount of all such investments, loans and advances does not to exceed $8,500,000 at 60,000,000 during the term of this Agreement. For purposes of determining the amount of any timeinvestment outstanding for purposes of this Section 6.04, such amount shall be deemed to be the amount of such investment when made, purchased or acquired without adjustment for subsequent increases or decreases in connection with the value of such employees’ exercise of their stock options and payment of related taxes thereoninvestment.
Appears in 1 contract
Samples: Credit Agreement (Deluxe Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all each of the foregoing, an “InvestmentsInvestment”), exceptexcept for:
(a) Permitted Acquisitions and Permitted Foreign Acquisitions;
(b) Permitted Investments;
(ic) Investments existing on the Effective Date, and set forth on Schedule 6.4, to the extent such investments would not be permitted under any other clause of this Section;
(d) 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;
(e) Investments by a Borrower in such Borrower’s Subsidiaries, provided, however, that (i) the Borrower aggregate amount of Investments in Domestic Subsidiaries which are not wholly-owned and its Subsidiaries which are not Borrowers or Facility Guarantors hereunder, when combined with the amount of Indebtedness set forth in their respective Subsidiaries outstanding on Section 6.1(c)(i), shall not exceed $25,000,000 for any Subsidiary and $100,000,000 in the date hereofaggregate unless the Payment Conditions are met, and (ii) additional the aggregate amount of Investments by in Foreign Subsidiaries, when combined with the Borrower amount of Indebtedness due from Foreign Subsidiaries set forth in Section 6.1(c)(ii), may not at any time exceed (i) $125,000,000 per annum or (ii) $500,000,000 in the aggregate from and its Subsidiaries after the Effective Date unless the Payment Conditions are met, and further provided in Loan Parties, each case that (iiiA) additional Investments by Subsidiaries no Default or Event of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment Investment, and both (B) immediately prior and after giving effect to such InvestmentInvestment and on a pro forma basis for a period of ninety (90) days thereafter, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are Excess Availability shall be not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) less than $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)80,000,000;
(cf) Guarantees constituting by a Borrower or Facility Guarantor of Indebtedness permitted by Section 6.01and other obligations of another Borrower or Facility Guarantor; and
(dg) loans or advances to officersemployees for the purpose of travel, directors entertainment or relocation in the ordinary course of business and employees of consistent with past practices, not exceeding $1,000,000 in the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding; provided, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans that no such advances to employees of the Borrower in cumulative aggregate amount not to any single employee shall exceed $8,500,000 at any time, 250,000 in connection with such employees’ exercise of their stock options and payment of related taxes thereonthe aggregate.
Appears in 1 contract
Samples: Credit Agreement (GameStop Corp.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold purchase or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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 Indebtedness of any other interest in, any other Person, Person or purchase or otherwise acquire (in one transaction or a series of transactions) 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 property and assets or business of another Person (all of the foregoing, foregoing being collectively called “Investments”), except:
(a) Permitted Investments and Permitted Foreign Investments;
(ib) Investments existing on the Effective Date and set forth on Schedule 6.04;
(c) Investments existing on the Effective Date in Restricted Subsidiaries;
(d) Investments in Persons that, immediately prior to such Investments, are Loan Parties;
(e) Investments by any Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary;
(f) Investments held by any Person acquired in any Permitted Acquisition at the time of such Permitted Acquisition (and not acquired in contemplation of the Permitted Acquisition);
(g) Investments constituting an acquisition of the Equity Interests in a Person that becomes a Restricted Subsidiary or all or substantially all of the assets (or all or substantially all of the assets constituting a business unit, division, product line or line of business) of any Person; provided that (i) no Event of Default shall have occurred and be continuing at the time of entry into the related acquisition agreement, (ii) the Borrower and its Restricted Subsidiaries shall, upon giving effect to such acquisition, be in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Partiescompliance with Section 6.03(b), (iii) additional Investments the acquired company and its subsidiaries (other than any Unrestricted Subsidiary) shall become Guarantors and pledge their collateral to the Collateral Agent to the extent required by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; Section 5.11, and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments all acquisition consideration paid by Loan Parties in connection with Investments and acquisitions made in compliance with reliance on this clause (g) attributable to the acquisition of acquired entities that do not become Guarantors shall not exceed at the time any such Investment is made the greater of $100,000,000 and 20% of Consolidated EBITDA for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.07(e5.01 after giving effect to the making of such Investment on a Pro Forma Basis (any acquisition under this Section 6.04(g), a “Permitted Acquisition”);
(ch) Guarantees constituting Indebtedness permitted by Section 6.01; andprovided that a Loan Party shall not Guarantee any Indebtedness of a Restricted Subsidiary that is not a Loan Party pursuant to this paragraph (h);
(di) 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;
(j) accounts receivable and extensions of trade credit arising in the ordinary course of business;
(k) Investments held by any Restricted Subsidiary at the time it becomes a Subsidiary in a transaction permitted by this Section 6.04;
(l) advances to officers, directors officers and employees of the Borrower and any Restricted Subsidiary for travel arising in the ordinary course of business;
(m) loans to officers and employees of the Borrower or any Restricted Subsidiary, not to exceed $1,000,000 in the aggregate at any one time outstanding;
(n) promissory notes and other non-cash consideration received by the Borrower and its Restricted Subsidiaries in connection with any Disposition permitted hereunder;
(o) advances in the form of prepayments of expenses, so long as such expenses were incurred in the ordinary course of business and are paid in accordance with customary trade terms of the Borrower or any of its Restricted Subsidiaries;
(p) Guarantees by the Borrower or any of its Restricted Subsidiaries of obligations of any Restricted Subsidiary or the Borrower incurred in the ordinary course of business and not constituting Indebtedness;
(q) Investments consisting of Indebtedness, Liens, fundamental changes, Dispositions and Restricted Payments permitted (other than by reference to this Section 6.04(q)) under Sections 6.01, 6.02, 6.03, 6.05 and 6.08, respectively;
(r) other Investments so long as on the date such Investment is made the Total Net Leverage Ratio as of the last day of the most recent Test Period for which financial statements have been delivered pursuant to Section 5.01 at the time such Investment is made on a Pro Forma Basis is no greater than 3.00 to 1.00;
(s) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(t) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of the Borrower or with Net Proceeds of any issuance of Qualified Equity Interests of the Borrower;
(u) (i) intercompany advances arising from their cash management, tax and accounting operations and (ii) intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business;
(v) Investments represented by Swap Agreements permitted under Section 6.01;
(w) other Investments in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.the Available Amount;
(ex) Loans other Investments; provided that at the time any such Investment is made the aggregate amount of Investments made in reliance on this clause (x) shall not to employees exceed the greater of $75,000,000 and 15% of Consolidated EBITDA for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 as of such time after giving effect to the making of such Investment on a Pro Forma Basis; and
(y) Investments made to effect the Mergers (if applicable). For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, less any return of capital, without adjustment for subsequent increases or decreases in the value of such Investment. For the avoidance of doubt, the acquisition by the Borrower and its Restricted Subsidiaries of Intellectual Property in the ordinary course of their respective businesses shall not be considered an Investment. To the extent an Investment is permitted to be made by a Loan Party directly in any Restricted Subsidiary or any other Person who is not a Loan Party (each such Restricted Subsidiary or other Person, a “Target Person”) under any provision of this Section 6.04, such Investment may be made by advance, contribution or distribution by a Loan Party to a Restricted Subsidiary (and further advanced, contributed or distributed to another Restricted Subsidiary) for purposes of making the relevant Investment in (or effecting an acquisition of) the Target Person without constituting an Investment for purposes of Section 6.04 (it being understood that such Investment or Acquisition must satisfy the requirements of, and shall count towards any thresholds in, a provision of this Section 6.04 as if made by the applicable Loan Party directly in the Target Person). For purposes of determining compliance with this Section 6.04, if any Investment (or a portion thereof) would be permitted pursuant to one or more provisions described above, the Borrower may divide and classify such Investment (or a portion thereof) in any manner that complies with this covenant. Notwithstanding anything in this Section 6.04 to the contrary, the Borrower will not, and will not permit any of its Restricted Subsidiaries to make any Investments pursuant to which Intellectual Property assets or other strategic assets, in each case, that are material to the business of the Borrower in cumulative aggregate amount not and its Restricted Subsidiaries, taken as a whole, is transferred to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereonUnrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Adeia Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold purchase or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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 Indebtedness of any other interest in, any other Person, Person or purchase or otherwise acquire (in one transaction or a series of transactions) 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 property and assets or business of another Person (all of the foregoing, foregoing being collectively called “Investments”), except:
(a) Permitted Investments and Permitted Foreign Investments;
(ib) Investments existing on the Effective Date and set forth on Schedule 6.04;
(c) Investments existing on the Effective Date in Restricted Subsidiaries;
(d) Investments in Persons that, immediately prior to such Investments, are Loan Parties;
(e) Investments by any Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary;
(f) Investments held by any Person acquired in any Permitted Acquisition at the time of such Permitted Acquisition (and not acquired in contemplation of the Permitted Acquisition);
(g) Investments constituting an acquisition of the Equity Interests in a Person that becomes a Restricted Subsidiary or all or substantially all of the assets (or all or substantially all of the assets constituting a business unit, division, product line or line of business) of any Person; provided that (i) no Event of Default shall have occurred and be continuing at the time of entry into the related acquisition agreement, (ii) the Borrower and its Restricted Subsidiaries shall, upon giving effect to such acquisition, be in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Partiescompliance with Section 6.03(b), (iii) additional Investments the acquired company and its subsidiaries (other than any Unrestricted Subsidiary) shall become Guarantors and pledge their collateral to the Collateral Agent to the extent required by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; Section 5.11, and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments all acquisition consideration paid by Loan Parties in connection with Investments and acquisitions made in compliance with reliance on this clause (g) attributable to the acquisition of acquired entities that do not become Guarantors shall not exceed at the time any such Investment is made the greater of $100,000,000 and 20% of Consolidated EBITDA for the most recently ended Test Period after giving effect to the making of such Investment on a Pro Forma Basis (any acquisition under this Section 6.07(e6.04(g), a “Permitted Acquisition”);
(ch) Guarantees constituting Indebtedness permitted by Section 6.01; andprovided that a Loan Party shall not Guarantee any Indebtedness of a Restricted Subsidiary that is not a Loan Party pursuant to this paragraph (h);
(di) 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;
(j) accounts receivable and extensions of trade credit arising in the ordinary course of business;
(k) Investments held by any Restricted Subsidiary at the time it becomes a Subsidiary in a transaction permitted by this Section 6.04;
(l) advances to officers, directors officers and employees of the Borrower and any Restricted Subsidiary for travel arising in the ordinary course of business;
(m) loans to officers and employees of the Borrower or any Restricted Subsidiary, not to exceed $1,000,000 in the aggregate at any one time outstanding;
(n) promissory notes and other non-cash consideration received by the Borrower and its Restricted Subsidiaries in connection with any Disposition permitted hereunder;
(o) advances in the form of prepayments of expenses, so long as such expenses were incurred in the ordinary course of business and are paid in accordance with customary trade terms of the Borrower or any of its Restricted Subsidiaries;
(p) Guarantees by the Borrower or any of its Restricted Subsidiaries of obligations of any Restricted Subsidiary or the Borrower incurred in the ordinary course of business and not constituting Indebtedness;
(q) Investments consisting of Indebtedness, Liens, fundamental changes, Dispositions and Restricted Payments permitted (other than by reference to this Section 6.04(q)) under Sections 6.01, 6.02, 6.03, 6.05 and 6.08, respectively;
(r) other Investments so long as on the date such Investment is made the Total Net Leverage Ratio as of the last day of the most recent Test Period for which financial statements have been delivered pursuant to Section 5.01 or Section 4.01(k) at the time such Investment is made on a Pro Forma Basis is no greater than 1.75 to 1.00;
(s) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(t) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of the Borrower or with Net Proceeds of any issuance of Qualified Equity Interests of the Borrower;
(u) (i) intercompany advances arising from their cash management, tax and accounting operations and (ii) intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business;
(v) Investments represented by Swap Agreements permitted under Section 6.01;
(w) other Investments in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.the Available Amount;
(ex) Loans other Investments; provided that at the time any such Investment is made the aggregate amount of Investments made in reliance on this clause (x) shall not to employees exceed the greater of $75,000,000 and 15% of Consolidated EBITDA for the most recently ended Test Period as of such time after giving effect to the making of such Investment on a Pro Forma Basis; and
(y) Investments made to effect the Mergers (if applicable). For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, less any return of capital, without adjustment for subsequent increases or decreases in the value of such Investment. For the avoidance of doubt, the acquisition by the Borrower and its Restricted Subsidiaries of Intellectual Property in the ordinary course of their respective businesses shall not be considered an Investment. To the extent an Investment is permitted to be made by a Loan Party directly in any Restricted Subsidiary or any other Person who is not a Loan Party (each such Restricted Subsidiary or other Person, a “Target Person”) under any provision of this Section 6.04, such Investment may be made by advance, contribution or distribution by a Loan Party to a Restricted Subsidiary (and further advanced, contributed or distributed to another Restricted Subsidiary) for purposes of making the relevant Investment in (or effecting an acquisition of) the Target Person without constituting an Investment for purposes of Section 6.04 (it being understood that such Investment or Acquisition must satisfy the requirements of, and shall count towards any thresholds in, a provision of this Section 6.04 as if made by the applicable Loan Party directly in the Target Person). For purposes of determining compliance with this Section 6.04, if any Investment (or a portion thereof) would be permitted pursuant to one or more provisions described above, the Borrower may divide and classify such Investment (or a portion thereof) in any manner that complies with this covenant. Notwithstanding anything in this Section 6.04 to the contrary, the Borrower will not, and will not permit any of its Restricted Subsidiaries to make any Investments pursuant to which Intellectual Property assets or other strategic assets, in each case, that are material to the business of the Borrower in cumulative aggregate amount not and its Restricted Subsidiaries, taken as a whole, is transferred to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereonUnrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Xperi Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Company will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(i) Investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding investments existing on the date hereof, hereof in the capital stock of Subsidiaries or in Indebtedness of Subsidiaries and (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from investments existing on the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)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) acquisitions of assets of or Equity Interests in other Persons that are not Affiliates of the Company and loans or advances to Subsidiaries to provide funds required to effect such acquisitions, if, at the time of and after giving pro forma effect to each such acquisition and any related incurrence of Indebtedness, (i) the Leverage Ratio does not exceed 3.50 to 1.00 and (ii) no Default shall have occurred and be continuing;
(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; 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, (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 all other investments, loans and advances permitted by this clause (iv), but net of all amounts paid by such non-Guarantor in or to the Company and/or any of the Guarantors after the Closing Date 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 $100,000,000; and (v) in addition to investments, loans and advances permitted under the preceding clauses (i) through (iv), (A) any Permitted AEC Transaction and (B) any investment, loan or advance by the Company or a Guarantor (whether directly or indirectly through one or more intervening Subsidiaries that is not a Guarantor) in or to an AEC Joint Venture Entity; provided that each investment, loan or advance referred to in this clause (v)(B) must be in an outstanding principal amount that, together with the aggregate outstanding principal amount of all other investments, loans and advances permitted by this clause (v)(B), but net of all amounts paid by such AEC Joint Venture Entity to the Company and/or any of the Guarantors 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 $100,000,000;
(f) Guarantees by a Subsidiary constituting Indebtedness permitted by Section 6.01; andParagraph 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 Indebtedness of a Subsidiary permitted by Paragraph 6A;
(dg) advances Guarantees by the Company of obligations of Albany International Holding (Switzerland) AG to officersBank of America, directors N.A., under the Limited Guaranty and employees Indemnity Agreements dated as of October 1, 2010 (as amended from time to time) between the Borrower Company and Subsidiaries Bank of America, N.A., in respect of overdrafts or currency hedging transactions in an aggregate amount not to exceed $2,000,000 20,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.time;
(eh) Loans 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;
(i) loans or other advances to employees of the Borrower consistent with past practice; and
(j) other investments not permitted under clauses (a) through (i) above in cumulative an aggregate amount not to exceed exceeding $8,500,000 75,000,000 at any time, .”
6. Paragraph 11B is hereby amended by adding the following defined terms in connection with such employees’ exercise of their stock options and payment of related taxes thereon.appropriate alphabetical order:
Appears in 1 contract
Samples: Amended and Restated Note Agreement and Guaranty (Albany International Corp /De/)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, Borrowers and their respective Restricted Subsidiaries will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all each of the foregoing, “Investments”an "Investment"), exceptexcept for:
(a) Permitted Investments;
(ib) Investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereofClosing Date, (ii) additional Investments by and set forth on Schedule 6.04, to the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries extent such investments would not be permitted under any other clause of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)this Section;
(c) Guarantees constituting Indebtedness permitted Loans, advances or capital contributions by Section 6.01; andany Borrower to any other Borrower;
(d) Loans, advances to officers, directors and employees or capital contributions under the Securitization Revolver or otherwise made in connection with a Permitted Securitization Transaction or in accordance with any existing obligations or agreements as of the Borrower Closing Date;
(e) Permitted Acquisitions and Subsidiaries the LEI Acquisition;
(f) Investments consisting of the purchase or other acquisition (in one transaction or a series of transactions) of any assets or capital stock of any other Person constituting a business unit, the aggregate consideration for which purchase or acquisition does not exceed $5,000,000 for any single acquisition or $25,000,000 in the aggregate for all such acquisitions after the Closing Date, provided that no Default or Event of Default then exists or would arise therefrom;
(g) Investments in joint ventures in an aggregate amount not to exceed $2,000,000 25,000,000 at any time outstanding;
(h) 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;
(i) Purchases, redemptions or acquisitions of capital stock involving a Restricted Payment permitted pursuant to Section 6.06;
(j) loans or advances to employees for the purpose of travel, entertainment, entertainment or relocation and analogous in the ordinary business purposes.course of business; and
(ek) Loans to employees Other Investments (excluding Investments consisting of the Borrower purchase or other acquisition (in cumulative aggregate amount one transaction or a series of transactions) any assets or capital stock of any other Person constituting a business unit) not to exceed $8,500,000 at 50,000,000 in the aggregate during any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereonfiscal year.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold purchase or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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 Indebtedness of any other interest in, any other Person, Person or purchase or otherwise acquire (in one transaction or a series of transactions) 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 property and assets or business of another Person (all of the foregoing, foregoing being collectively called “Investments”), except:
(a) Permitted Investments and Permitted Foreign Investments;
(ib) Investments existing on the Effective Date and set forth on Schedule 6.04;
(c) Investments existing on the Effective Date in Restricted Subsidiaries;
(d) Investments in Persons that, immediately prior to such Investments, are Loan Parties;
(e) Investments by any Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary;
(f) Investments held by any Person acquired in any Permitted Acquisition at the time of such Permitted Acquisition (and not acquired in contemplation of the Permitted Acquisition);
(g) Investments constituting an acquisition of the Equity Interests in a Person that becomes a Restricted Subsidiary or all or substantially all of the assets (or all or substantially all of the assets constituting a business unit, division, product line or line of business) of any Person; provided that (i) no Event of Default shall have occurred and be continuing at the time of entry into the related acquisition agreement, (ii) the Borrower and its Restricted Subsidiaries shall, upon giving effect to such acquisition, be in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Partiescompliance with Section 6.03(b), (iii) additional Investments the acquired company and its subsidiaries (other than any Unrestricted Subsidiary) shall become Guarantors and pledge their collateral to the Collateral Agent to the extent required by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; Section 5.11, and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments all acquisition consideration paid by Loan Parties in connection with Investments and acquisitions made in compliance with Section 6.07(ereliance on this clause (g) attributable to the acquisition of acquired entities that do not become Guarantors shall not exceed at the time any such Investment is made the greater of $75,0000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period after giving effect to the making of such Investment on a Pro Forma Basis (each, a “Permitted Acquisition”);
(ch) Guarantees constituting Indebtedness permitted by Section 6.01; andprovided that a Loan Party shall not Guarantee any Indebtedness of a Restricted Subsidiary that is not a Loan Party pursuant to this paragraph (h);
(di) 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;
(j) accounts receivable and extensions of trade credit arising in the ordinary course of business;
(k) Investments held by any Restricted Subsidiary at the time it becomes a Subsidiary in a transaction permitted by this Section 6.04;
(l) advances to officers, directors officers and employees of the Borrower and any Restricted Subsidiary for travel arising in the ordinary course of business;
(m) loans to officers and employees of the Borrower or any Restricted Subsidiary, not to exceed $1,000,000 in the aggregate at any one time outstanding;
(n) promissory notes and other noncash consideration received by the Borrower and its Restricted Subsidiaries in connection with any Disposition permitted hereunder;
(o) advances in the form of prepayments of expenses, so long as such expenses were incurred in the ordinary course of business and are paid in accordance with customary trade terms of the Borrower or any of its Restricted Subsidiaries;
(p) Guarantees by the Borrower or any of its Restricted Subsidiaries of obligations of any Restricted Subsidiary or the Borrower incurred in the ordinary course of business and not constituting Indebtedness;
(q) Investments consisting of Indebtedness, Liens, fundamental changes, Dispositions and Restricted Payments permitted (other than by reference to this Section 6.04(q)) under Sections 6.01, 6.02, 6.03, 6.05 and 6.08, respectively;
(r) other Investments so long as on the date such Investment is made, (i) no Event of Default shall have occurred and be occurring and (ii) the Total Net Leverage Ratio as of the last day of the most recent Test Period for which financial statements have been delivered pursuant to Section 5.01 or Section 4.01(j) at the time such Investment is made on a Pro Forma Basis is no greater than 2.50 to 1.00;
(s) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(t) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of the Borrower or with Net Proceeds of any issuance of Qualified Equity Interests of the Borrower;
(u) (i) intercompany advances arising from their cash management, tax and accounting operations and (ii) intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business;
(v) Investments represented by Swap Agreements permitted under Section 6.01;
(w) if no Event of Default has occurred and is continuing or would occur as a result thereof, other Investments in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.the Available Amount;
(ex) Loans to employees of other Investments; provided that at the Borrower in cumulative time any such Investment is made the aggregate amount of Investments made in reliance on this clause (x) shall not to exceed the greater of $8,500,000 at 75,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period as of such time after giving effect to the making of such Investment on a Pro Forma Basis; and
(y) Investments made to effect the DTS Acquisition, the Parent Merger and the Merger (if applicable). For purposes of covenant compliance, the amount of any timeInvestment shall be the amount actually invested, less any return of capital, without adjustment for subsequent increases or decreases in connection with the value of such employees’ exercise Investment. For the avoidance of doubt, the acquisition by the Borrower and its Restricted Subsidiaries of Intellectual Property in the ordinary course of their stock options respective businesses shall not be considered an Investment. To the extent an Investment is permitted to be made by a Loan Party directly in any Restricted Subsidiary or any other Person who is not a Loan Party (each such Restricted Subsidiary or other Person, a “Target Person”) under any provision of this Section 6.04, such Investment may be made by advance, contribution or distribution by a Loan Party to a Restricted Subsidiary (and payment further advanced, contributed or distributed to another Restricted Subsidiary) for purposes of related taxes thereonmaking the relevant Investment in (or effecting an acquisition of) the Target Person without constituting an Investment for purposes of Section 6.04 (it being understood that such Investment or Acquisition must satisfy the requirements of, and shall count towards any thresholds in, a provision of this Section 6.04 as if made by the applicable Loan Party directly in the Target Person). For purposes of determining compliance with this Section 6.04, if any Investment (or a portion thereof) would be permitted pursuant to one or more provisions described above, the Borrower may divide and classify such Investment (or a portion thereof) in any manner that complies with this covenant.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 Wholly Owned Subsidiary prior to such mergermerger 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 (all each of the foregoing, an “InvestmentsInvestment”), except:
(a) cash and Permitted Investments;
(ib) Permitted Acquisitions;
(c) Investments by each of the Borrower and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereof, Effective Date in the capital stock of its Subsidiaries and Unrestricted Subsidiaries;
(iid) additional Investments made by the Borrower in or to any Subsidiary and its Subsidiaries made by any Subsidiary in Loan Parties, (iii) additional Investments by Subsidiaries of or to the Borrower or any other Subsidiary (provided that not more than an aggregate amount of $5,000,000 of Investments may be made and remain outstanding, at any time, by Loan Parties to Subsidiaries which are not Loan Parties (in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from each case, determined on the date such Investment is made, with the fair market value of each Investment being measured at the time made and both immediately prior and after without giving effect to such Investment, the Borrower is subsequent changes in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(evalue);
(ce) Guarantees constituting Indebtedness permitted by Section 6.01; and;
(df) so long as no Default or Event of Default has occurred and is continuing, other Investments by the Borrower or any Subsidiary in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the Available Amount on the date of such Investment; provided, that the Borrower shall deliver a written notice to the Administrative Agent setting forth calculations in reasonable detail of the Available Amount immediately prior to such election and the amount thereof elected to be so applied;
(g) 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 and other credits to suppliers, in each case, in the ordinary course of business;
(h) loans or advances to officers, directors directors, managers and employees of the Borrower or any of its Subsidiaries for reasonable and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for customary business-related travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees purposes or in connection with such Person’s purchase of Equity Interests in the Borrower directly from the Borrower, in cumulative an aggregate principal amount not to exceed $8,500,000 1,500,000 at any time;
(i) Investments (including Capital Expenditures) to the extent funded with Excluded Contributions or with Equity Interests of the Borrower (other than Disqualified Equity Interests); provided, that (x) both immediately prior to and after giving effect to such Investment, no Default or Event of Default shall exist or would result therefrom and (y) the Borrower is in compliance, on a pro forma basis, with the financial covenants in Section 6.12;
(j) Investments by the Borrower or any of its Subsidiaries in Excluded Subsidiaries and joint ventures or similar arrangements in an aggregate amount at any one time outstanding not to exceed $2,500,000 (in each case, determined on the date such Investment is made, with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value);
(k) Investments (including debt obligations and Equity Interests) received in the ordinary course of business by the Borrower or any Subsidiary in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, suppliers and customers arising out of the ordinary course of business;
(l) Investments in Swap Agreements which constitute Investments;
(m) Investments of any Person in existence at the time such employees’ exercise Person becomes a Subsidiary (other than in Subsidiaries of their stock options any such Person); provided that such Investment was not made in connection with or in anticipation of such Person becoming a Subsidiary;
(n) Investments arising directly out of the receipt by the Borrower or any Subsidiary of non-cash consideration for any Disposition permitted under Section 6.03;
(o) advances of payroll payments to employees in the ordinary course of business;
(p) to the extent constituting an Investment, Route Signing Expenditures;
(q) the Borrower and payment the other parties thereto may consummate the transactions contemplated by the Merger Agreement on the Effective Date;
(r) Jamul Investments; and
(s) any other Investment, loan or advance so long as the aggregate outstanding amount of related taxes thereonall such Investments, loans and advances does not exceed $5,000,000 at any time during the term of this Agreement (in each case, determined on the date such Investment is made, with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value).
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all of the foregoingeach such action, an “InvestmentsInvestment”), except:
(a) Permitted Investmentsinvestments in cash and Cash Equivalents;
(ib) Investments investments in existence 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 by the terms of such Investment or as otherwise permitted by this Section 6.04;
(c) investments by the Borrower and its Subsidiaries in the capital stock of 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) (excluding any amounts relating to the processing of payments on the Borrower’s and its Subsidiaries’ payments platform and any intercompany accounts payable in connection therewith) and amounts described in clause (h) of the definition of “Permitted Acquisition”), as of any date of determination, made by the Borrower or the other Loan Parties in the capital stock of their respective Subsidiaries outstanding who are not Loan Parties does not at any time exceed an amount equal to $75 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 Subsidiary thereof in connection with the sale of any such investment);
(d) loans or advances made by the Borrower or any of its Subsidiaries to the Borrower or any other Subsidiary; provided, that the aggregate amount of loans and advances, excluding any amounts relating to the processing of payments on the Borrower’s and its Subsidiaries’ payments platform and any intercompany accounts payable in connection therewith, together with the aggregate amount of investments described in Section 6.04(c) and amounts described in clause (h) of the definition of “Permitted Acquisition”, 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 hereofof determination, exceed an amount equal to $75 million;
(e) Guarantees constituting Indebtedness permitted by Section 6.01 and guarantees of ordinary course commercial obligations not constituting Indebtedness;
(i) Permitted Acquisitions and (ii) additional Investments by of any Person in existence at the time such Person becomes a Subsidiary; provided, that such Investment was not made in connection with or anticipation of such Person becoming a Subsidiary and any modification, replacement, renewal or extension thereof;
(g) loans and advances to employees of the Borrower or any Subsidiaries in the ordinary course of business to finance the purchase of Equity Interests of the Borrower in an aggregate amount for the Borrower and its Subsidiaries not to exceed $5 million at any time outstanding;
(h) investments received in Loan Partiesconnection 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;
(i) Swap Agreements permitted by Section 6.06 and Permitted Equity Derivatives;
(j) 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;
(k) to the extent constituting investments, performance guarantees of obligations of the Borrower’s Subsidiaries in the ordinary course of business;
(l) other Investments by the Borrower or any of its Subsidiaries so long as, (iiiA) additional Investments by Subsidiaries no event of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment therefrom and both immediately prior and (B) after giving effect to such Investmentthereto on a pro forma basis, the Borrower Senior Secured 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 is not more than 2.75 to 1.00;
(m) Investments made as a result of the receipt of non-cash consideration from Disposition, of any asset in compliance with Section 6.13, additional 6.05;
(n) Investments by the Loan Parties in whollyJoint Ventures or non-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof for all Investments under this clause (n) not to exceed the sum of (A) exceeding $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)25 million;
(co) Guarantees constituting Indebtedness permitted by Section 6.01; and
(d) payroll, travel and similar advances to officers, directors and employees of the Borrower or any Subsidiary to cover matters that are expected at the time of such advances to be treated as expenses of the Borrower or such Subsidiary for accounting purposes and that are made in the ordinary course of business;
(p) Investments consisting of intercompany balances under that certain cost sharing agreement between the Borrower and Etsy Ireland UC entered into in January 2015, in connection with the development, marketing and operation of the Etsy marketplace; and
(q) 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 $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes35 million during the term of this Agreement.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Samples: Credit Agreement (Etsy Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 (all of the foregoing, “Investments”)unit, except:
(a) (i) investments by the Company and its Subsidiaries existing on the date hereof in the capital stock of its Subsidiaries, and (ii) other loans, advances and investments described in Schedule 6.04 existing on the Closing Date;
(b) Permitted Investments;
(c) Permitted Acquisitions;
(d) investments in the form of Swap Agreements permitted by Section 6.05;
(e) investments, loans or advances 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 (i) Investments by the Borrower investments, loans and its Subsidiaries advances in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other or to Subsidiaries that are not Loan Parties; Subsidiary Guarantors shall not, in the aggregate, exceed $60,000,000 at any time, and (ivii) the Company and any Domestic Subsidiary may incur Indebtedness owed to any Canadian Subsidiary if such Indebtedness does not exceed $60,000,000 in aggregate at any time and is due on demand and/or on one or more specified maturity dates, but, in any case, due and payable in its entirety within thirty (30) days from the date of incurrence thereof;
(f) purchases of assets in the ordinary course of business;
(g) investments comprised of capital contributions (whether in the form of cash, a note, or other assets) or otherwise resulting from transfers of assets permitted under this Agreement, in each case, to a Receivables Entity in connection with a Permitted Receivables Facility permitted hereunder; and
(h) any other investment, loan or advance (other than acquisitions) made in the ordinary course of business consistent with historical practices so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e);
all such investments, loans and advances does not exceed ten percent (c10%) Guarantees constituting Indebtedness permitted by Section 6.01; and
(d) advances to officers, directors and employees of Consolidated Net Worth on any date of determination during the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposesterm of this Agreement.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Samples: Credit Agreement (G&k Services Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all whether through purchase of the foregoingassets, “Investments”merger or otherwise), except:
(a) Permitted Investments;
(ib) Investments 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 Borrower and its Subsidiaries or any Subsidiary in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by or to the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in or any other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)Subsidiary;
(c) Guarantees constituting Indebtedness permitted by Section 6.01; and
(d) loans or advances to officers, directors and employees of the Borrower and Subsidiaries any Subsidiary (i) in an aggregate amount not to exceed $2,000,000 5,000,000 at any time outstanding, for reasonable and customary business related travel, entertainment, relocation and analogous ordinary business purposes.
purposes or (eii) Loans to employees of the Borrower in cumulative an aggregate amount not to exceed $8,500,000 5,000,000 at any timetime outstanding, in connection with such employeesPersons’ exercise purchase of Equity Interests of the Borrower or any direct or indirect parent thereof;
(d) investments by the Borrower and the Subsidiaries that are Loan Parties in Equity Interests in their stock options respective Subsidiaries that are Loan Parties and by the Borrower in the Captive Insurance Company; provided that investments made by the Borrower in the Captive Insurance Company shall not exceed an aggregate initial investment amount of $40,000,000 plus an additional $5,000,000 per each fiscal year following the fiscal year in which such initial investment was made;
(e) loans or advances made by the Borrower to any Subsidiary that is a Loan Party and made by any Subsidiary that is a Loan Party to the Borrower or any other Subsidiary that is a Loan Party;
(f) Guarantees constituting Indebtedness permitted by Section 6.01 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 sales, transfers and dispositions of assets permitted by Section 6.05;
(j) investments constituting deposits described in clauses (d) and (e) of the definition of the term “Permitted Encumbrances”;
(k) accounts receivable or notes receivable arising and trade credit granted in the ordinary course of business and other credits to suppliers or vendors in the ordinary course of business;
(l) investments constituting Permitted Acquisitions;
(m) investments constituting (i) Indebtedness, Liens, fundamental changes, sales or dispositions and Restricted Payments permitted under Sections 6.01, 6.02, 6.03, 6.05, 6.06 and 6.08, respectively or (ii) Capital Expenditures;
(n) [Reserved];
(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 bankruptcy or reorganization of suppliers and customers or in settlement or delinquent obligations of, or other disputes with, customers and suppliers arising in the ordinary course of business or received upon the foreclosure with respect to any secured investment or other transfer of title with respect to any secured investment;
(q) loans and advances to the Borrower (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 the Borrower in accordance with Section 6.08(a)(v);
(r) advances of payroll payments to employees in the ordinary course of business;
(s) investments to the extent that payment for such investments is made solely with Qualified Equity Interests of related taxes thereonthe Borrower;
(t) guarantees by 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;
(u) other investments, loans and advances by the Borrower and the Subsidiaries (i) provided that, at the time such an investment, loan or advance is made, the Payment Conditions are satisfied or (ii) made with the proceeds of any substantially contemporaneous issuance of Qualified Equity Interests by the Borrower or any direct or indirect parent of the Borrower to the extent such proceeds shall have actually been received by the Borrower; and
(v) other investments, loans and advances by the Borrower and the Subsidiaries which, together with any Restricted Payments made pursuant to Section 6.08(a)(x) and Restricted Debt Payments made pursuant to Section 6.08(b)(x) do not exceed $75,000,000 in the aggregate; provided that no Default or Event of Default then exists or would arise as a result of the making of such Specified Payment. For purposes of covenant compliance, the amount of any investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value thereof.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 mergermerger 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 (all of the foregoingcollectively, “Investments”), except:
(a) Permitted Investments;
(ib) Permitted Acquisitions;
(c) Investments by the Borrower Company and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereof, hereof in the capital stock of its Subsidiaries;
(iid) additional Investments made by the Borrower Company in or to any Subsidiary and its Subsidiaries made by any Subsidiary in Loan Partiesor to the Company or any other Subsidiary (provided, except as provided in clause (iiig) additional below, that the amount in Investments that may be made and remain outstanding, at any time, by Subsidiaries of the Borrower that are not Loan Parties in other to Subsidiaries that which are not Loan Parties; and , shall not exceed the greater of (ivi) so long $20,000,000 or (ii) 5.0% of Consolidated Tangible Assets, determined as no Default has occurred and is continuing of the most recent date for which the Company’s Financials have been delivered under Section 5.01 (or, if prior to the date of the first financial statements to be delivered pursuant to Section 5.01(a) or would result from such Investment and both immediately prior and after giving effect to such Investment(b), the Borrower is most recent financial statements referred to in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e3.04(a)));
(ce) Guarantees constituting Indebtedness permitted by Section 6.01; and
(df) advances to officersany other Investment (other than Acquisitions) so long as the aggregate amount of all such Investments does not exceed the greater of (i) $30,000,000 and (ii) 7.5% of Consolidated Tangible Assets, directors and employees determined as of the Borrower and Subsidiaries in an aggregate amount not most recent date for which the Company’s Financials have been delivered under Section 5.01 (or, if prior to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees the date of the Borrower first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in cumulative aggregate Section 3.04(a))) during the term of this Agreement. For purposes of compliance with Sections 6.04(d) and (f), the amount not to exceed $8,500,000 at of any timeinvestment shall be the amount initially invested, without adjustment for subsequent increases or decreases in connection with the value of such employees’ exercise Investment, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of their stock options and payment of related taxes thereonsuch Investment.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”)unit, except:
(ai) Permitted Investments and (ii) so long as the aggregate outstanding amount thereof does not exceed $20,000,000 at any time during the term of this Agreement, Permitted Two-Year Investments;
(ib) Investments investments existing on the date hereof and listed on Schedule 6.04;
(c) loans, advances or capital contributions made by the Borrower to any Subsidiary and its Subsidiaries made by any Subsidiary to the Borrower or any other Subsidiary (provided that not more than $15,000,000 in their respective Subsidiaries outstanding on loans, advances or capital contributions may be made and remain outstanding, during the date hereofterm of this Agreement, (ii) additional Investments by the Borrower and its Subsidiaries in or any Subsidiary Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are Party to a Person which is not a Subsidiary Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(eParty);
(cd) 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, provided that the sum of all consideration paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and fair market value of any other non-cash consideration) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed in connection with, or resulting from, Permitted Acquisitions (including Indebtedness of any acquired Persons outstanding at the time of the applicable Permitted Acquisition) shall not exceed, during the term of this Agreement, the Acquisition Amount;
(g) Guarantees by the Borrower 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 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;
(j) investments in or acquisitions of stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to the Borrower or any Subsidiary or in satisfaction of judgments;
(k) 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 Borrower and its Subsidiaries in the ordinary course of business;
(l) warrants, options and Equity Interests received by the Borrower or any Subsidiary as full or partial compensation for services rendered by the Borrower 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
(dn) advances to officers, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees of other investments by the Borrower in a cumulative aggregate amount not to exceed exceeding $8,500,000 at any time, in connection with such employees’ exercise 10,000,000 during the term of their stock options and payment of related taxes thereonthis Agreement.
Appears in 1 contract
Samples: Credit Agreement (Heidrick & Struggles International Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 (all of the foregoing, “Investments”)unit, except:
(a) cash and Permitted Investments;
(b) Permitted Acquisitions and Limited Equity Acquisitions; provided, that (i) Investments the aggregate consideration paid in respect of such Permitted Acquisition or Limited Equity Acquisition, when taken together with the aggregate consideration paid in respect of all other Permitted Acquisitions and paid or contributed in respect of all other Limited Equity Acquisitions, does not exceed $275,000,000 during any twelve-month period, (ii) the aggregate consideration paid in respect of any Permitted Acquisition does not exceed $150,000,000, (iii) the aggregate consideration paid in respect of all Limited Equity Acquisitions does not exceed $50,000,000 during any twelve-month period, and (iv) the Leverage Ratio, calculated on a Pro Forma Basis after giving effect to such acquisition, does not exceed 3.00 to 1.00;
(c) investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereofhereof in the capital stock of its Subsidiaries;
(d) investments, (ii) additional Investments loans or advances made by the Borrower in or to any Subsidiary and its Subsidiaries made by any Subsidiary in Loan Parties, (iii) additional Investments by Subsidiaries of or to the Borrower or any other Subsidiary (provided that are 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 in other to Subsidiaries that which are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e);
(ce) Guarantees constituting Indebtedness permitted by Section 6.01; and;
(df) extended payment terms to customers of the Borrower and any Subsidiary in the ordinary course of business and consistent with past practices;
(g) investments in the form of promissory notes and other non-cash consideration received by the Borrower or any Subsidiary in connection with any disposition or discount of accounts receivable to the extent permitted under Section 6.03(a)(v);
(h) loans and advances to officers, directors (i) distributors of the Safeguard services and product lines of the Borrower and its Subsidiaries (other than with respect to a Permitted Safeguard Distributor Transaction) and (ii) officers and employees of the Borrower and or its Subsidiaries in an accordance with prior practices, so long as (x) the aggregate amount of all loans and advances made pursuant to clause (h)(i) above does not to exceed $2,000,000 1,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.(y) the aggregate amount of all loans and advances made pursuant to this Section 6.04(h) does not exceed $5,000,000 at any time;
(ei) Loans to employees investments consisting of the purchase, repurchase, redemption or acquisition of Equity Interests of the Borrower or any Subsidiary permitted under Section 6.07, provided that such Equity Interests so purchased, repurchased, redeemed or acquired are promptly retired and cancelled, other than Equity Interests of the Borrower consisting of capital stock which may be held by the Borrower as treasury stock;
(j) any purchase, repurchase or acquisition by the Borrower or any other Subsidiary of outstanding loans or advances owed by the Borrower to any Subsidiary or owed by any Subsidiary to the Borrower or any other Subsidiary, provided that any such purchase, repurchase or acquisition by a Loan Party from a Subsidiary that is not a Subsidiary Guarantor shall comply with Section 6.06 (without giving effect to the exception under Section 6.06(b));
(k) investments in cumulative Swap Agreements permitted under Section 6.05;
(l) investments of advance payments received from customers to the extent such advance payments shall be permitted under Section 6.01(k);
(m) investments existing on the Amendment No. 1 Effective Date and set forth on Schedule 6.04;
(n) investments, advances or loans having a bona fide purpose directly related to effecting any Permitted Safeguard Distributor Transaction (as determined by the Borrower in its commercially reasonable judgment acting in good faith), including, without limitation, any Permitted Safeguard Sale Consideration; and
(o) any other investment, loan or advance (other than acquisitions) so long as the aggregate amount of all such investments, loans and advances does not to exceed $8,500,000 at 60,000,000 during the term of this Agreement. For purposes of determining the amount of any timeinvestment outstanding for purposes of this Section 6.04, such amount shall be deemed to be the amount of such investment when made, purchased or acquired without adjustment for subsequent increases or decreases in connection with the value of such employees’ exercise of their stock options and payment of related taxes thereoninvestment.
Appears in 1 contract
Samples: Credit Agreement (Deluxe Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all each of the foregoing, an “InvestmentsInvestment”), exceptexcept for:
(a) Permitted InvestmentsAcquisitions;
(ib) Investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)Permitted Investments;
(c) Guarantees constituting Investments existing on the Closing Date, and set forth on Schedule 6.4, to the extent such investments would not be permitted under any other clause of this Section;
(d) 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;
(e) Investments by a Borrower in such Borrower’s Subsidiaries, provided, however, that the aggregate amount of Investments in Foreign Subsidiaries, when combined with the amount of Indebtedness permitted by due from Foreign Subsidiaries set forth in Section 6.016.1(c), may not at any time exceed (i) $25,000,000 per annum or (ii) $100,000,000 in the aggregate from and after the Closing Date, and further provided that any Investment in Domestic Subsidiaries which are not wholly-owned and which are not Borrowers or Facility Guarantors hereunder shall not exceed $25,000,000 for any Subsidiary and $100,000,000 in the aggregate; and
(df) loans or advances to officersemployees for the purpose of travel, directors entertainment or relocation in the ordinary course of business and employees of consistent with past practices, not exceeding $500,000 in the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding; provided, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans that no such advances to employees of the Borrower in cumulative aggregate amount not to any single employee shall exceed $8,500,000 at any time, 250,000 in connection with such employees’ exercise of their stock options and payment of related taxes thereonthe aggregate.
Appears in 1 contract
Samples: Credit Agreement (Gamestop Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 (all of the foregoing, “Investments”)unit, except:
(a) (i) investments by the Company and its Subsidiaries existing on the date hereof in the capital stock of its Subsidiaries, and (ii) other loans, advances and investments described in Schedule 6.04 existing on the Closing Date;
(b) Permitted Investments;
(c) Permitted Acquisitions;
(d) investments in the form of Swap Agreements permitted by Section 6.05;
(e) investments, loans or advances 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 (i) Investments by the Borrower investments, loans and its Subsidiaries advances in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other or to Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect Subsidiary Guarantors, when combined with the Company’s Guarantees of Subsidiary Indebtedness to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof Subsidiary Guarantors permitted pursuant to Section 6.04(f), shall not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e);
(c) Guarantees constituting Indebtedness permitted by Section 6.01; and
(d) advances to officers, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in the aggregate, exceed $100,000,000, and (ii) the Company and any Domestic Subsidiary may incur Indebtedness owed to any Canadian Subsidiary if such Indebtedness does not exceed $60,000,000 in aggregate at any time and is due on demand and/or on one or more specified maturity dates, but, in any case, due and payable in its entirety within thirty (30) days from the date of incurrence thereof;
(f) Guarantees by the Company or a Subsidiary of the Company in respect of Indebtedness owing by the Company or a Subsidiary so long as the Indebtedness so guaranteed is permitted under Section 6.01; provided that that all such Guarantees by the Company in respect of Indebtedness owing by a Subsidiary that is not a Subsidiary Guarantor, when combined with the investments, loans or advances permitted pursuant to Section 6.04(e)(i), shall not at any time, in the aggregate, exceed $100,000,000.
(g) purchases of assets in the ordinary course of business;
(h) investments comprised of capital contributions (whether in the form of cash, a note, or other assets) or otherwise resulting from transfers of assets permitted under this Agreement, in each case, to a Receivables Entity in connection with a Permitted Receivables Facility permitted hereunder; and
(i) any other investment, loan or advance (other than acquisitions) made in the ordinary course of business consistent with historical practices so long as the aggregate amount of all such employees’ exercise investments, loans and advances does not exceed ten percent (10%) of their stock options and payment Consolidated Net Worth on any date of related taxes thereondetermination during the term of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (G&k Services Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or hold, acquire (including pursuant to any merger or consolidation with any Person that was not a wholly wholly-owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) ofthereto), 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 all or substantially all the assets of any other Person constituting or of a business unit (all unit, division, product line or line of business of any other Person, or assets acquired other than in the ordinary course of business that, following the acquisition thereof, would constitute a substantial portion of the foregoingassets of Borrower and the Subsidiaries, “Investments”)taken as a whole, except:
(a) Permitted Investments;
(ib) Investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereof, Restatement Effective Date and set forth on Schedule 6.10 (iibut not any additions thereto (including any capital contributions) additional Investments by made after the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(eRestatement Effective Date);
(c) Guarantees constituting Indebtedness permitted Investments by Section 6.01the Borrower or any Subsidiary in the Borrower or any other Subsidiary; andprovided that such subsidiaries are Subsidiaries prior to the making of such investments;
(d) 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 6.09;
(e) Investments in the form of Hedging Agreements (i) entered into to hedge or mitigate risks to which the Borrower or any other Subsidiary has actual exposure (other than in respect of Equity Interests or Indebtedness of the Borrower or any other Subsidiary) and (ii) entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Subsidiary;
(f) 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) payroll, travel and similar advances to officersdirectors, directors officers and employees of Borrower or any Subsidiary to cover matters that are expected at the time of such advances to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(h) loans or advances to directors, officers and employees of the Borrower or any Subsidiary in the ordinary course of business; provided that the aggregate amount of such loans and Subsidiaries advances outstanding at any time shall not exceed $500,000;
(i) the acquisition of all or substantially all of the assets or all of the Equity Interests in KFWD TV 52 for aggregate consideration no greater than the amount previously disclosed to the Lenders;
(j) Investments consisting of promissory notes evidencing obligations in respect of accounts payable incurred in the ordinary course;
(k) other Investments and acquisitions so long as at the time each such Investment or acquisition is purchased, made or otherwise acquired (A) no Event of Default shall have occurred and be continuing or would result therefrom and (B) the Total Leverage Ratio shall be less than 5.75 to 1.00; provided that (1) if at the time any such Investment or acquisition is purchased, made or otherwise acquired the Total Leverage Ratio is less than 5.00 to 1.00, then the amount of such Investment, or the aggregate consideration and other amounts paid in connection with such acquisition, together with the aggregate amount, determined as of such time, of all other Investments purchased, made or otherwise acquired, and the aggregate amount of all consideration and such other amounts paid in connection with all other acquisitions made, in reliance on this clause (k) during the fiscal year in which such Investment or acquisition is consummated shall not exceed $65,000,000, and (2) if at the time any such Investment or acquisition is purchased, made or otherwise acquired the Total Leverage Ratio is greater than 5.00 to 1.00 but less than 5.75 to 1.00, then the amount of such Investment, or the aggregate consideration and other amounts paid in connection with such acquisition, together with the aggregate amount, determined as of such time, of all other Investments purchased, made or otherwise acquired, and the aggregate amount of all consideration and such other amounts paid in connection with all other acquisitions made, in reliance on this clause (k) during the fiscal year in which such Investment or acquisition is consummated shall not exceed $15,000,000; and
(l) other Investments in an aggregate amount not to exceed $2,000,000 at 5,000,000 in any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposesfiscal year.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to before such merger) any capital stock, evidences Equity Interest in or evidence of indebtedness or other securities security (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans loan or advances advance to, Guarantee any obligations obligation 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”)unit, except:
(ai) Permitted Investmentsexisting loans, advances and investments not otherwise permitted by this Section 6.04 described on Schedule 6.04;
(iii) Investments marketable direct obligations issued or unconditionally guaranteed by the United States or any agency thereof maturing within 120 days from the date of acquisition thereof;
(iii) certificates of deposit maturing no more than 120 days from the date of creation thereof issued by commercial banks incorporated under the laws of the United States, each having combined capital, surplus and undivided profits of not less than $500,000,000 and having a rating of "A" or better by a nationally recognized rating agency; provided, that the aggregate amount invested in such certificates of deposit shall not at any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for any one such bank;
(iv) time deposits maturing no more than 30 days from the date of creation thereof with commercial banks or savings banks or savings and loan associations each having membership either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding the maximum amounts of insurance thereunder;
(v) commercial paper maturing no more than 120 days from the date of creation thereof and currently having the highest credit rating obtainable from S&P or from Xxxxx'x;
(vi) investments by the Borrower and its Subsidiaries in Equity Interests in Persons that are their respective Subsidiaries outstanding on subsidiaries immediately prior to the date hereof, of such investment and investments by any Subsidiary in another Subsidiary;
(iivii) additional Investments loans or advances made by the Borrower to any Subsidiary or made by any Subsidiary to the Borrower or any other Subsidiary;
(viii) Guarantees constituting Debt permitted by Section 6.01;
(ix) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and its Subsidiaries disputes with, customers and suppliers, in Loan Parties, each case in the ordinary course of business;
(iiix) additional Investments by Subsidiaries subject to compliance with the other applicable provisions of the Loan Documents, investments by the Borrower in the form of acquisitions of all or substantially all of the business or a line of business (by way of acquisition of capital stock or other equity interests only) of any other Person, and investments by any Subsidiary in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of capital stock, assets or any combination thereof) of any other Person, in each case if such acquisition has been previously approved in writing by the Required Lenders; provided that are if the aggregate consideration (including cash, debt, capital stock and any eam-out) for any such acquisition does not Loan Parties exceed $5,000,000 and such aggregate consideration, together with the aggregate consideration with respect to all other acquisitions that have been consummated after the date hereof in other Subsidiaries that are reliance in this proviso does not Loan Parties; and (iv) exceed $10,000,000, then no such consent shall be required so long as no Default has occurred and is continuing or Event of Default shall be in existence or would result from such Investment and both immediately prior and occur after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)thereto;
(cxi) Guarantees constituting Indebtedness permitted by Section 6.01; and
(d) loans and advances to officersdirectors, directors officers and employees of the Borrower and the Subsidiaries in an the ordinary course of business; provided, that the aggregate outstanding amount of all investments under this clause (xi) shall not to exceed $2,000,000 500,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.one time; and
(exii) Loans to employees any investment consisting of the funds (and the interest thereon) deposited in the Escrow Account of the Borrower permitted hereunder escrowed or set aside in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise escrow account or restricted account for the purpose of their stock options and payment of related taxes paying interest accrued thereon.
Appears in 1 contract
Samples: Bridge Financing Agreement (Choice One Communications Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly Owned Subsidiary prior to such merger) any capital 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 PersonPerson (all the foregoing being collectively called "INVESTMENTS"), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting (other than inventory acquired in the ordinary course of business) that constitute a business unit (all or are substantial in relation to the consolidated assets of the foregoing, “Investments”)Company, except:
(a) the Acquisition;
(b) Permitted Investments;
(ic) Investments existing on the date hereof and set forth on Schedule 6.04;
(d) Investments existing on the date hereof in Subsidiaries;
(e) additional Investments in Persons that, immediately prior to such investments, are Restricted Subsidiaries;
(f) Investments by the Borrower and its Unrestricted Subsidiaries in their respective Subsidiaries outstanding on the date hereofPersons that, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investmentinvestments, are Unrestricted Subsidiaries;
(g) Investments consisting of all the Borrower is issued and outstanding capital stock, or all or substantially all the assets, of Persons engaged in compliance with lines of business permitted under Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries 6.03(b); PROVIDED that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus no Default shall have occurred and be continuing at the time any such Investment is made or would occur as a result thereof and (B) the difference between cash consideration payable for all such Investments made under this clause (1g) after the date hereof in the capital stock or assets of other Persons shall not exceed $50,000,000 minus (2) 20,000,000 in the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)aggregate;
(ch) Guarantees constituting Indebtedness permitted by Section 6.01; andPROVIDED that a Subsidiary shall not Guarantee the Subordinated Notes or any Acceptable Securities;
(di) 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;
(j) accounts receivable arising in the ordinary course of business;
(k) investments and loans held by any Subsidiary at the time it becomes a Subsidiary in a transaction permitted by this Section;
(l) reasonable advances to officers, directors officers and employees of the Borrower Company and Subsidiaries any Subsidiary for travel arising in an aggregate amount the ordinary course of business;
(m) loans to officers and employees of the Company or any Subsidiary, not to exceed $2,000,000 100,000 in the aggregate at any one time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.;
(en) Loans to employees of promissory notes and other noncash consideration received by the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, Company and its Subsidiaries in connection with any asset sale permitted hereunder;
(o) advances in the form of prepayments of expenses, so long as such employees’ exercise expenses were incurred in the ordinary course of their stock options business and payment are paid in accordance with customary trade terms of related taxes thereonthe Company or any of its Subsidiaries;
(p) Guarantees by the Company of obligations of Restricted Subsidiaries incurred in the ordinary course of business and not constituting Indebtedness; and
(q) other investments, loans or advances made by the Company, any Domestic Subsidiary or any Foreign Borrower at times when no Default or Event of Default shall have occurred and be continuing or would occur as a result thereof and that, taken together with all other investments made after the date hereof under this clause (q), would not exceed (A) the sum of $5,000,000 and 50% of Consolidated Net Income of the Company for the period (treated as one accounting period) commencing January 1, 2000, and ending at the most recent fiscal quarter end for which financial statements shall have been delivered under Section 5.01(a) or (b), minus (B) the amount of Restricted Payments made after the date hereof pursuant to Section 6.08(a).
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(ib) Investments investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereof, (ii) additional Investments by hereof in the Borrower and capital stock of its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)set forth on Schedule 6.04;
(c) loans or advances made by the Borrower to any Guarantor and made by any Guarantor to the Borrower or any other Guarantor;
(d) Guarantees constituting Indebtedness permitted by Section 6.01; and
(de) advances Permitted Acquisitions; provided that (i) the Adjusted Acquisition Consideration for any single Permitted Acquisition shall not exceed $35,000,000, (ii) the aggregate Acquisition Consideration paid for all Permitted Acquisitions during the Availability Period shall not exceed $75,000,000, (iii) on or before the tenth (10th) Business Day prior to officersthe closing of any such acquisition, directors the Borrower shall have delivered to the Administrative Agent notice of the proposed acquisition, including the name of the Person which is the subject of an acquisition, structure of the transaction and employees the purchase price and all other consideration payable in connection therewith, and (iv) on or before (A) the fifth (5th) Business Day prior to the closing of such proposed acquisition, where the Acquisition Consideration is $10,000,000 or more, or (B) the fifteenth (15th) day after the closing of such proposed acquisition, where the Acquisition Consideration is less than $10,000,000, the Borrower shall have delivered to the Administrative Agent:
(1) a pro forma balance sheet and income statements of the Borrower and its Subsidiaries (after giving effect to the proposed Permitted Acquisition) as of the then most recent fiscal quarter ended for which a financial statement has been delivered in an aggregate amount accordance with Section 5.01, together with a certificate of a Financial Officer, in form and substance satisfactory to the Administrative Agent, demonstrating that upon the consummation of such Permitted Acquisition, the Borrower will be in compliance with the financial covenants contained in Section 6.12, such evidence of compliance to be in form and substance reasonably satisfactory to the Lenders;
(2) financial statements which shall include balance sheets, income statements and statements of cash flows of the Person being acquired, (a) in the same form and substance as those required to be delivered by the Borrower under Section 5.01, to the extent such are available, or (b) if unavailable, in the form relied upon by the Borrower in connection with such transaction, in each case for the previous three (3) fiscal years, or, if less than three (3) years are existing, for such for such shorter period of time as does exist;
(3) copies of the relevant purchase agreement, together with such other additional documentation or information with respect to the proposed acquisition as the Administrative Agent may reasonably require; and
(4) lien searches or other evidence satisfactory to the Administrative Agent that the shares or other interest in the Person, or the assets of the Person, which is the subject of the related Permitted Acquisition are (or will be at closing) free and clear of all Liens, except those Liens permitted pursuant to Section 6.02, including, without limitation, with respect to the acquisition of shares or other equity interests, free of any restrictions on transfer other than restrictions applicable to the sale of securities under federal and state securities laws and regulations generally.
(f) loans or advances made by the Borrower or any Guarantor to Persons (other than the Borrower or a Guarantor) not to exceed $2,000,000 5,000,000 in the aggregate at any time outstandingoutstanding during the Availability Period; provided that (i) such loans or advances are made to entities with which the Borrower or a Guarantor is engaged in business on the date of such loan or advance, (ii) the Borrower or the Guarantor, as applicable, receives a promissory note evidencing each such loan or advance, and (iii) the Borrower or Guarantor, as applicable, concurrently with its receipt of such note, assigns such note, and any collateral security received to secure such note, to the Administrative Agent for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees the ratable benefit of the Borrower in cumulative aggregate amount not Lenders to exceed $8,500,000 at any time, in connection with such employees’ exercise of further secure their stock options respective obligations under this Agreement and payment of related taxes thereonthe other Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (National Medical Health Card Systems Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. 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 mergermerger 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 (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(ib) Investments Permitted Acquisitions;
(c) investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereofhereof in the capital stock of its Subsidiaries;
(d) investments, (ii) additional Investments loans, advances or capital contributions made by the Borrower in or to any Subsidiary and its Subsidiaries made by any Subsidiary in Loan Parties, (iii) additional Investments by Subsidiaries of or to the Borrower or any other Subsidiary (provided that are 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 in other to Subsidiaries that which are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e);
(ce) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(f) Swap Agreements permitted under Section 6.05;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower or a Subsidiary as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(h) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(i) investments consisting of Restricted Payments permitted by Section 6.07;
(j) Guarantees constituting Indebtedness permitted by Section 6.01; and
(dk) loans or advances made by the Borrower or any Subsidiary to its officers, directors directors, employees or consultants on an arms-length basis (i) in the ordinary course of business for travel and employees entertainment expenses, relocation costs and similar purposes up to a maximum of $1,000,000 in the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any one time outstanding, for travel, entertainment, relocation (ii) in respect of payroll payments and analogous expenses in the ordinary course of business purposes.
and (eiii) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise person’s purchase of their stock options Equity Interests of the Borrower solely to the extent that the amount of such loans and payment advances shall be contributed to the Borrower in cash as common equity.
(l) extensions of related taxes thereontrade credit in the ordinary course of business and consistent with past practices;
(m) prepaid expenses and lease, utility, workers, compensation, performance and other similar deposits made in the ordinary course of business and consistent with past practices;
(n) 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;
(o) investments in existence on the Effective Date, and to the extent having an aggregate principal value of greater than $1,000,000, listed on Schedule 6.04; and
(p) any other investment, loan or advance (other than acquisitions) so long as the aggregate amount of all such investments, loans and advances does not exceed $25,000,000 during the term of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Healthequity Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Company will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(i) Investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding investments existing on the date hereof, hereof in the capital stock of Subsidiaries or in Indebtedness of Subsidiaries and (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from investments existing on the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)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) acquisitions of assets of or Equity Interests in other Persons that are not Affiliates of the Company and loans or advances to Subsidiaries to provide funds required to effect such acquisitions, if, at the time of and after giving pro forma effect to each such acquisition and any related incurrence of Indebtedness, (i) the Leverage Ratio does not exceed 3.50 to 1.00 and (ii) no Default shall have occurred and be continuing;
(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; 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, (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 all other investments, loans and advances permitted by this clause (iv), but net of all amounts paid by such non-Guarantor in or to the Company and/or any of the Guarantors after the Closing Date 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 $100,000,000; and (v) in addition to investments, loans and advances permitted under the preceding clauses (i) through (iv), (A) any Permitted AEC Transaction and (B) any investment, loan or advance by the Company or a Guarantor (whether directly or indirectly through one or more intervening Subsidiaries that is not a Guarantor) in or to an AEC Joint Venture Entity; provided that each investment, loan or advance referred to in this clause (v)(B) must be in an outstanding principal amount that, together with the aggregate outstanding principal amount of all other investments, loans and advances permitted by this clause (v)(B), but net of all amounts paid by such AEC Joint Venture Entity to the Company and/or any of the Guarantors 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 $100,000,000;
(f) Guarantees by a Subsidiary constituting Indebtedness permitted by Section 6.01; andParagraph 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 Indebtedness of a Subsidiary permitted by Paragraph 6A;
(dg) advances Guarantees by the Company of obligations to officersBank of America, directors N.A., (i) of Albany International Holding (Switzerland) AG under the Amended and employees Restated Limited Guaranty and Indemnity Agreement dated as of May 1, 2015 (as amended from time to time) between the Borrower Company and Subsidiaries Bank of America, N.A., in respect of overdrafts or currency hedging transactions in an aggregate amount not to exceed $2,000,000 20,000,000 at any time, and (ii) of other Subsidiaries under the Limited Guaranty and Indemnity Agreement dated as of May 1, 2015 (as amended from time outstandingto time) between the Company and Bank of America, for travelN.A., entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees in respect of the Borrower credit card exposure in cumulative an aggregate amount not to exceed $8,500,000 US$1,000,000 at any time, ;
(h) investments received in connection with such employees’ exercise the bankruptcy or reorganization of, or settlement of their stock options delinquent accounts and payment disputes with, customers and suppliers, in each case in the ordinary course of related taxes thereonbusiness;
(i) loans or other advances to employees consistent with past practice; and
(j) other investments not permitted under clauses (a) through (i) above in an aggregate amount not exceeding $75,000,000 at any time.”
4. Paragraph 6K is hereby amended and restated in its entirety to read as follows:
Appears in 1 contract
Samples: Note Agreement and Guaranty (Albany International Corp /De/)
Investments, Loans, Advances, Guarantees and Acquisitions. The 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 mergermerger or consolidation) 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 purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions; provided that the aggregate purchase price, which shall be deemed to include (i) Investments by the Borrower any amounts actually paid pursuant to any post-closing payment adjustments, earn outs or non-compete payments and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate principal amount of permitted Restricted Payments made in compliance with Indebtedness that is assumed pursuant to Section 6.07(e);
(c6.01(a)(vi) Guarantees constituting Indebtedness permitted by Section 6.01; and
(d) advances to officers, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise Permitted Acquisition, shall not exceed $30,000,000 in any fiscal year and $60,000,000 in the aggregate; provided further that, notwithstanding anything to the contrary in clause (b) of their stock options the definition of “Permitted Acquisition”, the Borrower shall be permitted to make Permitted Acquisitions under this clause (b) without satisfying clause (b) of the definition of “Permitted Acquisition” if such Permitted Acquisition is otherwise permitted to be made under this clause (b); provided further that the aggregate purchase price of such Permitted Acquisitions made in reliance on the preceding proviso (including all amounts of the types described in clauses (i) and payment (ii) of related taxes thereon.the second preceding proviso) shall not exceed $10,000,000 in any fiscal year and $25,000,000 in the aggregate;
(i) investments existing on the date hereof in the Subsidiaries and (ii) other investments existing on the date hereof and set forth on Schedule 6.04;
Appears in 1 contract
Samples: Credit Agreement (Comtech Telecommunications Corp /De/)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or hold, acquire (including pursuant to any merger or consolidation with any Person that was not a wholly wholly-owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) ofthereto), 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 all or substantially all the assets of any other Person constituting or of a business unit (all unit, division, product line or line of business of any other Person, or assets acquired other than in the ordinary course of business that, following the acquisition thereof, would constitute a substantial portion of the foregoingassets of Borrower and the Subsidiaries, “Investments”)taken as a whole, except:
(a) : Permitted Investments;
; Investments existing on the date hereof and set forth on Schedule 6.11 (ibut not any additions thereto (including any capital contributions) made after the date hereof); Investments by the Borrower and its Subsidiaries or any Subsidiary in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its or any other Subsidiary; provided that such subsidiaries are Subsidiaries in Loan Parties, (iii) additional prior to the making of such investments; Investments by Subsidiaries made as a result of the Borrower that are not Loan Parties in receipt of noncash consideration from a sale, transfer, lease or other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is disposition of any asset in compliance with Section 6.136.10; Investments in the form of Hedging Agreements (i) entered into to hedge or mitigate risks to which the Borrower or any other Subsidiary has actual exposure (other than in respect of Equity Interests or Indebtedness of the Borrower or any other Subsidiary) and (ii) entered into in order to effectively cap, additional collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Subsidiary; Investments by received in connection with the Loan Parties bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in wholly-owned Subsidiaries each case in the ordinary course of business; payroll, travel and similar advances to directors, officers and employees of Borrower or any Subsidiary to cover matters that are not Loan Parties in an aggregate amount invested from expected at the date hereof not time of such advances to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments be treated as expenses for accounting purposes and that are made in compliance with Section 6.07(e);
(c) Guarantees constituting Indebtedness permitted by Section 6.01the ordinary course of business; and
(d) loans or advances to officersdirectors, directors officers and employees of the Borrower or any Subsidiary in the ordinary course of business; provided that the aggregate amount of such loans and Subsidiaries advances outstanding at any time shall not exceed $500,000; the acquisition of all or substantially all of the assets or all of the Equity Interests in KFWD TV 52 for aggregate consideration no greater than the amount previously disclosed to the Lenders; Investments consisting of promissory notes evidencing obligations in respect of accounts payable incurred in the ordinary course; other Investments and acquisitions so long as at the time each such Investment or acquisition is purchased, made or otherwise acquired (A) no Event of Default shall have occurred and be continuing or would result therefrom and (B) the Leverage Ratio shall be less than 5.75 to 1.00; provided that (1) if at the time any such Investment or acquisition is purchased, made or otherwise acquired the Leverage Ratio is less than 5.00 to 1.00, then the amount of such Investment, or the aggregate consideration and other amounts paid in connection with such acquisition, together with the aggregate amount, determined as of such time, of all other Investments purchased, made or otherwise acquired, and the aggregate amount of all consideration and such other amounts paid in connection with all other acquisitions made, in reliance on this clause (k) during the fiscal year in which such Investment or acquisition is consummated shall not exceed $65,000,000, and (2) if at the time any such Investment or acquisition is purchased, made or otherwise acquired the Leverage Ratio is greater than 5.00 to 1.00 but less than 5.75 to 1.00, then the amount of such Investment, or the aggregate consideration and other amounts paid in connection with such acquisition, together with the aggregate amount, determined as of such time, of all other Investments purchased, made or otherwise acquired, and the aggregate amount of all consideration and such other amounts paid in connection with all other acquisitions made, in reliance on this clause (k) during the fiscal year in which such Investment or acquisition is consummated shall not exceed $15,000,000; and other Investments in an aggregate amount not to exceed $2,000,000 at 1,000,000 in any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposesfiscal year.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Samples: Five Year Competitive Advance and Revolving Credit Facility Agreement (Belo Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all whether through purchase of the foregoingassets, “Investments”merger or otherwise), except:
(a) Permitted Investments, subject to control agreements in favor of the Administrative Agent for the benefit of the Lenders or otherwise subject to a perfected security interest in favor of the Administrative Agent for the benefit of the Lenders;
(ib) Investments investments by the Borrower and its the Subsidiaries (i) existing on the date hereof in Equity Interests in their respective Subsidiaries outstanding on the date hereofSubsidiaries, (ii) additional Investments by made after the Borrower and its date hereof in Equity Interests in Subsidiaries in who are or who become Loan Parties, and (iii) additional Investments by made after [November 1, 2009] in Equity Interests in foreign Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that who are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and , provided that the amount of investments made [after giving effect to such InvestmentNovember 1, the Borrower is 2009] in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned all foreign Subsidiaries that who are not Loan Parties Parties, when added to any loans or advances made pursuant to Section 6.04(c)(iii), shall not exceed $2,500,000 in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)outstanding at any one time;
(c) loans or advances (i) made by the Borrower to any Subsidiary who is or becomes a Loan Party, (ii) made by any Subsidiary to the Borrower or any Subsidiary who is or becomes Loan Party, or (iii) made by the Borrower or any Subsidiary after November 1, 2009 to foreign Subsidiaries who are not Loan Parties, provided that the amount of loans and advances made after November 1, 2009 to all foreign Subsidiaries who are not Loan Parties, when added to investments made pursuant to Section 6.04(b)(iii), shall not exceed $2,500,000 in the aggregate outstanding at any one time;
(d) Guarantees constituting Indebtedness permitted by Section 6.01; and
(d) advances to officers, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereonPermitted Acquisitions.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold purchase or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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 Indebtedness of any other interest in, any other Person, Person or purchase or otherwise acquire (in one transaction or a series of transactions) 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 property and assets or business of another Person (all of the foregoing, foregoing being collectively called “Investments”), except:
(a) Permitted Investments and Permitted Foreign Investments;
(ib) Investments existing on the Effective Date and set forth on Schedule 6.04;
(c) Investments existing on the Effective Date in Restricted Subsidiaries;
(d) Investments in Persons that, immediately prior to such Investments, are Loan Parties;
(e) Investments by any Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary;
(f) Investments held by any Person acquired in any Permitted Acquisition at the time of such Permitted Acquisition (and not acquired in contemplation of the Permitted Acquisition);
(g) Investments constituting an acquisition of the Equity Interests in a Person that becomes a Restricted Subsidiary or all or substantially all of the assets (or all or substantially all of the assets constituting a business unit, division, product line or line of business) of any Person; provided that (i) no Event of Default shall have occurred and be continuing at the time of entry into the related acquisition agreement, (ii) the Borrower and its Restricted Subsidiaries shall, upon giving effect to such acquisition, be in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Partiescompliance with Section 6.03(b), (iii) additional Investments the acquired company and its subsidiaries (other than any Unrestricted Subsidiary) shall become Guarantors and pledge their collateral to the Collateral Agent to the extent required by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; Section 5.11, and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments all acquisition consideration paid by Loan Parties in connection with Investments and acquisitions made in compliance with Section 6.07(ereliance on this clause (g) attributable to the acquisition of acquired entities that do not become Guarantors shall not exceed at the time any such Investment is made the greater of $50,0000,000 and 20% of Consolidated EBITDA for the most recently ended Test Period after giving effect to the making of such Investment on a Pro Forma Basis (each, a “Permitted Acquisition”);.
(ch) Guarantees constituting Indebtedness permitted by Section 6.01; andprovided that a Loan Party shall not Guarantee any Indebtedness of a Restricted Subsidiary that is not a Loan Party pursuant to this paragraph (h);
(di) 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;
(j) accounts receivable and extensions of trade credit arising in the ordinary course of business;
(k) Investments held by any Restricted Subsidiary at the time it becomes a Subsidiary in a transaction permitted by this Section 6.04;
(l) advances to officers, directors officers and employees of the Borrower and Subsidiaries any Restricted Subsidiary for travel arising in an aggregate amount the ordinary course of business;
(m) loans to officers and employees of the Borrower or any Restricted Subsidiary, not to exceed $2,000,000 in the aggregate at any one time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.;
(en) Loans to employees promissory notes and other noncash consideration received by the Borrower and its Restricted Subsidiaries in connection with any Disposition permitted hereunder;
(o) advances in the form of prepayments of expenses, so long as such expenses were incurred in the ordinary course of business and are paid in accordance with customary trade terms of the Borrower or any of its Restricted Subsidiaries;
(p) Guarantees by the Borrower or any of its Restricted Subsidiaries of obligations of any Restricted Subsidiary or the Borrower incurred in cumulative aggregate the ordinary course of business and not constituting Indebtedness;
(q) Investments consisting of Indebtedness, Liens, fundamental changes, Dispositions and Restricted Payments permitted (other than by reference to this Section 6.04(q)) under Sections 6.01, 6.02, 6.03, 6.05 and 6.08, respectively;
(r) other Investments so long as on the date such Investment is made, (i) no Event of Default shall have occurred and be occurring and (ii) the Total Leverage Ratio as of the last day of the most recent Test Period for which financial statements have been delivered pursuant to Section 5.01 or Section 4.01(j) at the time such Investment is made on a Pro Forma Basis is no greater than 2.50 to 1.00;
(s) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(t) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of the Borrower or with Net Proceeds of any issuance of Qualified Equity Interests of the Borrower;
(u) (i) intercompany advances arising from their cash management, tax and accounting operations and (ii) intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business;
(v) Investments represented by Swap Agreements permitted under Section 6.01;
(w) other Investments in an amount not to exceed the Available Amount; provided that, at the time each Investment is made (other than in reliance on clause (a) of the definition of “Available Amount”), the Total Leverage Ratio as of the last day of the most recent Test Period for which financial statements have been delivered pursuant to Section 5.01 or Section 4.01(j) on a Pro Forma Basis is no greater than 3.50 to 1.00;
(x) other Investments; provided that at the time any such Investment is made the aggregate amount of Investments made in reliance on this clause (x) shall not to exceed the greater of $8,500,000 at 75,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period as of such time after giving effect to the making of such Investment on a Pro Forma Basis; and
(y) Investments made to effect the Integration Plan, the Quasar Acquisition, the Merger, and the Interim Term Loan Assumption (if applicable). For purposes of covenant compliance, the amount of any timeInvestment shall be the amount actually invested, less any return of capital, without adjustment for subsequent increases or decreases in connection with the value of such employees’ exercise Investment. For the avoidance of doubt, the acquisition by the Borrower and its Restricted Subsidiaries of Intellectual Property in the ordinary course of their stock options respective businesses shall not be considered an Investment. To the extent an Investment is permitted to be made by a Loan Party directly in any Restricted Subsidiary or any other Person who is not a Loan Party (each such Restricted Subsidiary or other Person, a “Target Person”) under any provision of this Section 6.04, such Investment may be made by advance, contribution or distribution by a Loan Party to a Restricted Subsidiary (and payment further advanced, contributed or distributed to another Restricted Subsidiary) for purposes of related taxes thereonmaking the relevant Investment in (or effecting an acquisition of) the Target Person without constituting an Investment for purposes of Section 6.04 (it being understood that such Investment or Acquisition must satisfy the requirements of, and shall count towards any thresholds in, a provision of this Section 6.04 as if made by the applicable Loan Party directly in the Target Person). For purposes of determining compliance with this Section 6.04, if any Investment (or a portion thereof) would be permitted pursuant to one or more provisions described above, the Borrower may divide and classify such Investment (or a portion thereof) in any manner that complies with this covenant.
Appears in 1 contract
Samples: Credit Agreement (Cavium, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions; provided that the aggregate cash consideration for such Permitted Acquisitions, which shall be deemed to include (i) Investments any amounts actually paid pursuant to any post-closing payment adjustments, earn- outs or non-compete payments and (ii) the principal amount of Indebtedness that is assumed pursuant to Section 6.01(a)(vi) or otherwise incurred in connection with such Permitted Acquisition, shall not exceed $40,000,000 for any period of four consecutive fiscal quarters and $80,000,000 in the aggregate since the Effective Date plus, in each case (without duplication) an amount equal to any returns of capital or sale proceeds actually received in cash in respect of any such Permitted Acquisition (which amount shall not exceed the purchase price paid (including the principal amount of Indebtedness assumed pursuant to Section 6.01(a)(vi) in connection therewith) in respect of such Permitted Acquisition);
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Parent Borrower and its Subsidiaries in Equity Interests in their respective Subsidiaries outstanding on Subsidiaries; provided that (i) any such Equity Interests held by a Loan Party shall be pledged pursuant to the date hereof, Collateral Agreement (subject to the limitations applicable to common stock of a Foreign Subsidiary referred to in the definition of “Collateral and Guarantee Requirement”) and (ii) additional Investments the aggregate amount of investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties (together with outstanding intercompany loans permitted under clause (ii) to the proviso to Section 6.04(e) and outstanding Guarantees permitted under the proviso to Section 6.04(g)) shall not exceed $500,000 at any time outstanding (in an aggregate amount invested from the date hereof not each case determined without regard to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(eany write-down or write-offs);
(ce) loans or advances made by the Parent Borrower to any Subsidiary and made by any Subsidiary to the Parent 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 Collateral Agreement and (ii) the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties (together with investments permitted under clause (ii) of Section 6.04(d) and outstanding Guarantees permitted under the proviso to Section 6.04(g) shall not exceed $500,000 at any time outstanding (in each case determined without regard to any write-down or write-offs);
(f) loans or advances to employees made in the ordinary course of business of the Parent Borrower or a Subsidiary not exceeding $250,000 in the aggregate outstanding at any time, provided that no such advances to any single employee shall exceed $100,000 in the aggregate outstanding (determined without regard to any write-downs or write-offs of such loans or advances).
(g) Guarantees constituting Indebtedness permitted by Section 6.01; andprovided that the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party (together with investments permitted under clause (ii) of Section 6.04(d) and outstanding intercompany loans permitted under clause (ii) to the proviso to Section 6.04(e)) shall not exceed $500,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(dh) advances to officersinvestments received in connection with the bankruptcy or reorganization of, directors or settlement of delinquent accounts and employees disputes with, customers and suppliers, in each case in the ordinary course of business;
(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 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 consolidation or merger;
(k) investments received in connection with the dispositions of assets permitted by Section 6.05;
(l) other investments, loans and Subsidiaries advances by the Parent Borrower or any Subsidiary in an aggregate amount, as valued at cost at the time each such investment is made and including all related commitments for future advances, not exceeding $250,000 in the aggregate for all such investments made from and after the Effective Date plus an amount equal to any returns of capital actually received in cash in respect of any such investments (which amount shall not to exceed $2,000,000 the amount of such investment valued at any cost at the time outstanding, for travel, entertainment, relocation and analogous ordinary business purposessuch investment was made).
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Samples: Credit Agreement (Mac-Gray Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Subsidiary prior to such merger) any capital stockEquity Interests, 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, transfer (by sale, lease or otherwise) or contribute any asset (except dispositions made on arms’ length terms for fair market value) to, or make or permit to exist any investment or any other similar interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (all of the foregoing, each an “InvestmentsInvestment”), except:
(a) Permitted Investments;
(b) Investments by the Borrower or any of its Subsidiaries that exist on the date hereof and an Investment in any Person to the extent such Investment replaces or refinances an Investment in such Person existing on the date hereof in an amount not exceeding the amount of the Investment being replaced or refinanced; provided that the new Investment is on terms and conditions not materially less favorable, taken as a whole, to the Borrower and its Subsidiaries than the Investment being renewed or replaced;
(c) Investments made after the Effective Date (i) by any Loan Party to or in any other Loan Party and (ii) by any Subsidiary that is not a Subsidiary Guarantor to or in the Borrower or any wholly-owned Subsidiary;
(d) Investments made after the Effective Date by any Loan Party to or in any Subsidiary that is not a Subsidiary Guarantor (including Investments in the Equity Interests of any wholly-owned Subsidiary newly organized or acquired after the date hereof) which in aggregate, for all such Investments made after the Effective Date, do not exceed 15% of the Consolidated Net Worth of the Borrower as of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered to the Administrative Agent pursuant to Sections 5.01(a) or 5.01(b), as applicable;
(e) Guarantees constituting Indebtedness permitted by Section 6.01;
(f) Investments in the Securitization SPV pursuant to the Securitization; provided that the only assets transferred to the Securitization SPV consist of Receivables and Related Assets;
(g) Investments by the Borrower and its Subsidiaries not otherwise permitted under paragraphs (a) through (f) of this Section 6.04; provided, however, that at the time of such Investment and immediately after giving effect thereto, the Borrower shall be in their respective compliance with the financial covenants contained in Section 6.08, in each case determined on a pro forma basis after giving effect to such Investment as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered to the Administrative Agent pursuant to Sections 5.01(a) or 5.01(b), as applicable; provided, further, that this paragraph (g) shall not permit Investments in or to Subsidiaries outstanding on the date hereof, that are not Subsidiary Guarantors in addition to those permitted pursuant to paragraph (iid) additional of this Section 6.04; and
(h) Investments by the Borrower and its Subsidiaries in Loan Partiesnot otherwise permitted under paragraphs (a) through (g) of this Section 6.04; provided, (iii) additional Investments by Subsidiaries however, that at the time of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investmentthereto, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e);
(c) Guarantees constituting Indebtedness permitted by Section 6.01; and
(d) advances to officers, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposesshall have Investment Grade Ratings.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 mergermerger 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 (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
(c) (i) Investments investments by the Borrower Company and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereof, hereof in the capital stock of its Subsidiaries and (ii) additional Investments intercompany loans and advances described on Schedule 6.01 hereto;
(d) investments, loans or advances made by the Borrower Company in or to any Subsidiary and its Subsidiaries made by any Subsidiary in Loan Partiesor to the Company or any other Subsidiary (provided that not more than an aggregate amount of $200,000,000 in investments, (iii) additional Investments loans or advances or capital contributions may be made and remain outstanding, at any time, by Subsidiaries of the Borrower that are not Loan Parties in other to Subsidiaries that which are not Loan Parties; provided that (i) no such Dollar limitation shall apply if at the time of incurrence of any applicable Indebtedness or the making of any applicable investment, loan or advance and immediately after giving effect (on a Pro Forma Basis) thereto, the Leverage Ratio is equal to or less than 2.00 to 1.00 and (ivii) intercompany accounts receivable and accounts payable arising in the ordinary course of business for services rendered or the purchase or sale of assets among the Company and its Subsidiaries shall not count against any limitation set forth in this Section 6.04(d) and shall be permitted under this Section 6.04(d) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is arrangements are in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e6.06(a));
(ce) Guarantees of trade account payables incurred by the Borrower or any of its Subsidiaries in the ordinary course of business and on payment terms not to exceed 120 days;
(f) Guarantees constituting Indebtedness permitted by Section 6.01;
(g) Swap Agreements permitted by Section 6.05 below;
(h) loans or advances to employees, officers or directors of the Company or any Subsidiary in the ordinary course of business for travel, relocation and related expenses;
(i) Equity Interests in the ordinary course of business and consistent with past practices in connection with the satisfaction or enforcement of Indebtedness or claims due or owing to the Company or such Subsidiary or as security for any such Indebtedness or claim; and
(dj) advances to officersany other investment, directors and employees of loan or advance (other than acquisitions) so long as the Borrower and Subsidiaries in an aggregate amount of all such investments, loans and advances does not to exceed $2,000,000 50,000,000 in the aggregate at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Samples: Credit Agreement (Newmarket Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all of the foregoingeach, an “InvestmentsInvestment”), except:
(a) Permitted InvestmentsInvestments in cash and Cash Equivalents;
(ib) Investments in existence on the Effective Date and described in Schedule 6.04;
(c) Investments by the Borrower and its Subsidiaries in the capital stock of 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 outstanding on who are not Loan Parties does not at any time exceed the date hereof, greater of (iix) additional Investments by $30,000,000 or (y) 15% of EBITDA of the Borrower and its Subsidiaries on a consolidated basis for the most recently ended Reference Period for which financial statements have been (or were required to be) delivered pursuant to Sections 5.01(a) or 5.01(b), as applicable (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 Parties, Party or any Subsidiary thereof in connection with the sale of any such Investment);
(iiid) additional Investments loans or advances made by Subsidiaries of the Borrower or any of its Subsidiaries to the 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 at any time outstanding does not, as of any date of determination, exceed the greater of (x) $30,000,000 or (y) 15% of EBITDA of the Borrower and its Subsidiaries on a consolidated basis for the most recently ended Reference Period for which financial statements have been (or were required to be) delivered pursuant to Sections 5.01(a) or 5.01(b), as applicable;
(e) Guarantees constituting Indebtedness permitted by Section 6.01;
(f) Permitted Acquisitions;
(g) loans or advances to employees, officers, or directors of the Borrower or any of its Subsidiaries in the ordinary course of business for travel, relocation, and other similar expenses; provided, that the aggregate amount of all such loans and advances does not exceed $5,000,000 at any time outstanding;
(h) [reserved];
(i) Swap Agreements permitted by Section 6.06;
(j) [reserved];
(k) 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;
(l) to the extent constituting Investments, performance guarantees of obligations of the Borrower’s Subsidiaries that are in the ordinary course of business;
(m) other Investments in an aggregate amount (valued at cost) at any time outstanding not Loan Parties; to exceed the greater of (x) $30,000,000 or (y) 15% of EBITDA of the Borrower and its Subsidiaries on a consolidated basis for the most recently ended Reference Period for which financial statements have been (ivor were required to be) delivered pursuant to Sections 5.01(a) or 5.01(b), as applicable;
(n) other Investments so long as (i) no Default or Event of Default has occurred and is continuing or would result from such Investment therefrom and both immediately prior and (ii) the Total Net Leverage Ratio for the most recently ended Reference Period for which financial statements have been (or were required to be) delivered pursuant to Sections 5.01(a) or 5.01(b), as applicable, calculated after giving effect thereto on a pro forma basis as if such Investment (including the incurrence, assumption or acquisition of any Indebtedness in connection therewith (assuming, in the case of any such Indebtedness in the form of revolving commitments or delayed draw term loan commitments, that such commitments are fully drawn)) occurred on the first day of such Reference Period, does not exceed 3.75:1.00;
(o) Investments consisting of deposits, prepayments and/or other credits to such suppliers in the ordinary course of business;
(p) Investments consisting of extensions of trade credit and accommodation guarantees in the ordinary course of business;
(q) promissory notes and other Investments received in connection with Dispositions permitted by Section 6.05;
(r) obligations with respect to Guarantees provided by the Borrower or any Subsidiary in respect 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;
(s) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(t) Investments (including debt obligations and Equity Interests) (i) received in connection with the bankruptcy or reorganization of suppliers and customers, from financially troubled account debtors or in settlement of delinquent obligations of, or other disputes with, customers and suppliers or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment, the Borrower is (ii) in compliance with Section 6.13satisfaction of judgments against other Persons, additional Investments (iii) as a result of a foreclosure by the Loan Parties or any Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in wholly-owned Subsidiaries default and (iv) as a result of the settlement, compromise or resolution of (a) litigation, arbitration or other disputes or (b) obligations of trade creditors or customers that are not were incurred in the ordinary course of business or consistent with industry practice of the Loan Parties in an aggregate amount invested from or any Subsidiary, including pursuant to any plan of reorganization or similar arrangement upon the date hereof not to exceed the sum bankruptcy or insolvency of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e);
(c) Guarantees constituting Indebtedness permitted by Section 6.01any trade creditor or customer; and
(du) advances to officers, directors and employees of the purchase by the Borrower of any Permitted Call Hedging Agreement; provided that no Default or Event of Default has occurred and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposesis continuing or would result therefrom.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Samples: Credit Agreement (Roku, Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Borrowers will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(ib) Investments investments by the any Borrower and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereofhereof in the capital stock, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Partiesor other beneficial interest in, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)any Subsidiary;
(c) Guarantees constituting Indebtedness permitted by Section 6.01; andadditional investments in the capital stock, or other beneficial interest of, any other Borrower;
(d) loans or advances made by any Borrower to officers, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.other Borrower;
(e) Loans to employees acquisitions by any Borrower as long as (i) the Board of Directors of the acquiring Borrower (or at the Board's discretion, such Borrower's Executive Committee of its Board of Directors) has approved the proposed acquisition, (ii) the Administrative Agent is notified at least three business days in cumulative aggregate amount not advance of the consummation of such acquisition if more than $5,000,000 of Loans are to exceed be borrowed hereunder and used in connection with the completion of such acquisition, (iii) immediately before and immediately after such acquisition no Default or Event of Default will occur or exist, (iv) thirty days prior to the consummation of such acquisition, the Borrowers provide the most recent audited annual financial statements for the entity being acquired (PROVIDED, that the requirements of this clause (iv) shall apply only if the purchase price for such acquisition exceeds $8,500,000 at 15,000,000 and a majority of such purchase price will be financed using Loans borrowed under this Agreement), (v) such acquisition is consistent with the Borrowers current acquisition strategy set forth on SCHEDULE 6.04 hereto, and (vi) if such acquisition involves the formation or acquisition by any time, Borrower of any Person that becomes a Subsidiary or as a result of or in connection with such employees’ exercise acquisition, such Subsidiary shall execute such security agreements, mortgages, pledge agreements, financing statements, intercreditor agreements and such other documents as are requested by the Administrative Agent and shall become bound by this Agreement and such other documents executed in connection herewith (PROVIDED, that the requirements of their this clause (vi) shall not apply if, but only to the extent, that such Subsidiary is or at the time of such acquisition becomes a party to any agreement for borrowed funds Indebtedness with any third party that prohibits the Administrative Agent from obtaining a Lien on the assets or capital stock options and payment of related taxes thereon.or other beneficial interests in such Subsidiary);
(f) the Guarantee Agreement dated March 20, 1997 (the "Guarantee Agreement") of HHC regarding Bowie Center Limited Partnership, a Maryland limited partnership, of all amounts owing under the Loan Agreement (as defined in the Guarantee Agreement); and
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 merger, consolidation, or amalgamation with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger, consolidation, or amalgamation) 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 assets of any other Person constituting a business unit (all whether through purchase of the foregoingassets, “Investments”merger, consolidation, amalgamation or otherwise), except:
(a) Permitted Investments, Investment Grade Securities and loans and advances in connection with the sale, transfer or disposition of assets other than Collateral;
(ib) Investments by the Borrower and its Subsidiaries investments in their respective Subsidiaries outstanding existence or contemplated on the date hereofof 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 Holdings, the Company or any Subsidiary in or to Holdings, the Company or any other subsidiary of the Company;
(c) (i) loans and advances to employees, directors, officers, managers, distributors and consultants for business-related travel expenses, moving expenses and other similar expenses or payroll advances, in each case incurred in the ordinary course of business or consistent with past practices or (ii) to fund such Person’s purchase of Equity Interests of Holdings, the Company or any direct or indirect parent company of Holdings (provided that the amount of such loans and advances shall be contributed to the Company in cash as common equity) or (iii) advances to, or guarantees of Indebtedness of, employees not in excess of $5,000,000 outstanding at any one time, in the aggregate;
(d) investments (i) in Holdings, the Company or any other Loan Party, (ii) additional Investments by any Subsidiary that is not a Loan Party in Holdings, the Borrower Company or any other Loan Party, and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such InvestmentHoldings, the Borrower Company or any other Loan Party in any Subsidiary that is in compliance with Section 6.13, additional Investments by the not a Loan Parties in wholly-owned Subsidiaries that are not Loan Parties Party in an aggregate amount invested from the date hereof for all such investments under this clause (iii) not to exceed the sum of $5,000,000 and an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (A) $17,500,000 plus (B) which amount shall not exceed the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made such Investment valued at the fair market value of such Investment at the time such Investment was made); provided that, investments by any U.S. Loan Party in compliance with Section 6.07(eany Canadian Loan Party shall be subject to clause (iii) above and not clauses (i) or (ii);
(ce) Guarantees constituting Indebtedness 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, Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business and investments as a result of the foreclosure on any secured investment or other transfer of title with respect to any secured investment in default;
(f) investments made to repurchase or retire Equity Interests of Holdings (or any direct or indirect parent thereof) or the Company owned by any employee stock ownership plan or key employee stock ownership plan of Holdings (or any direct or indirect parent thereof) or the Company;
(g) investments in the form of Swap Agreements permitted by Section 6.01;
(h) investments of any Person existing at the time such Person becomes a Subsidiary of the Company or consolidates, amalgamates, or merges with Holdings, the Company 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 amalgamation or merger;
(i) investments and other assets received in connection with the dispositions of assets permitted by Section 6.05;
(j) investments constituting deposits described in Section 6.02;
(k) accounts receivable or notes receivable arising and trade credit granted in the ordinary course of business and other credits to suppliers or vendors in the ordinary course of business;
(l) Permitted Acquisitions;
(m) Liens, Indebtedness, fundamental changes, dispositions, Restricted Payments and Restricted Debt Payments permitted under Sections 6.01, 6.02, 6.03 (except to the extent constituting the acquisition of a Person that becomes a Subsidiary or the acquisition by Holdings, the Company or any Subsidiary of all or substantially all the assets or businesses of a Person or of assets constituting a business unit, line of business or division of such Person), 6.05, 6.06 and 6.08, respectively, solely to the extent constituting Liens, Indebtedness, fundamental changes, dispositions, Restricted Payments and Restricted Debt Payments which are permitted under the foregoing Sections 6.01, 6.02, 6.03, 6.05, 6.06 and 6.08, respectively, which Liens, Indebtedness, fundamental changes, dispositions, Restricted Payments and Restricted Debt Payments are not otherwise permitted by this Section 6.04;
(n) the Transactions and the RTD Transactions;
(o) investments in the ordinary course of business consisting of UCC Article 3 (or equivalent statutes) endorsements for collection or deposit and UCC Article 4 (or equivalent statutes) customary trade arrangements with customers consistent with past practices;
(p) in exchange for any other investment or investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of suppliers and customers or in settlement or delinquent obligations of, or other disputes with, customers and suppliers arising in the ordinary course of business or received upon the foreclosure with respect to any secured investment or other transfer of title with respect to any secured investment and investments in satisfaction of judgments against such other Person;
(q) loans 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);
(r) advances of payroll payments in the ordinary course of business to satisfy ordinary course payroll and other obligations of such company;
(i) Investments, purchases and other acquisitions of assets to the extent that payment for such Investments, purchases and other acquisitions of assets is made solely with Qualified Equity Interests of Holdings (or of any direct or indirect parent thereof) or the Company or (ii) Investments, purchases and other acquisitions of assets to the extent the payment for such Investment, purchases and other acquisitions of assets is made with the cash proceeds from the issuance by Holdings (or any direct or indirect parent thereof) or the Company of Qualified Equity Interests or a substantially contemporaneous capital contribution in respect of Qualified Equity Interests of Holdings or the Company;
(t) extensions or advances of trade credit, asset purchases (including purchases of Inventory, supplies and materials), the lease of any asset and the licensing or contribution of intellectual property pursuant to joint marketing or other arrangements with other Persons, in each case in the ordinary course of business;
(u) guarantees by Holdings, the Company or any Subsidiary of leases (other than capitalized leases) for which another Loan Party is the lessee or of other obligations of another Loan Party that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(v) other investments, loans and advances; provided that, at the time such investment, loan or advance is made and after giving effect thereto, each of the Payment Conditions is satisfied;
(w) other investments, loans and advances which, together with any Restricted Payments made pursuant to Section 6.08(a)(xii) and Restricted Debt Payments made pursuant to Section 6.08(b)(vii), do not exceed $25,000,000 in the aggregate; provided that, at the time such investment, loan or advance is made and after giving effect thereto, no Event of Default or Liquidity Event exists or has occurred and is continuing;
(x) any investment in any Subsidiary or any joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business;
(y) investments consisting of purchases and acquisitions of assets or services in the ordinary course of business;
(z) investments made in the ordinary course of business in connection with obtaining, maintaining or renewing client contacts and loans or advances made to distributors in the ordinary course of business;
(aa) investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business; and
(dbb) advances to officersthe Triwest Loan. For purposes of covenant compliance, directors and employees the amount of any investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value thereof. In connection with any merger, consolidation or amalgamation (or other acquisition of the assets) of a Subsidiary that is not a Borrower or Canadian Loan Party, as applicable with and Subsidiaries into (or to) a Borrower, or Canadian Loan Party, as applicable or any Permitted Acquisition or other acquisition of assets permitted hereunder, whether by purchase of stock, merger, consolidation, amalgamation or purchase of assets and whether in an aggregate amount a single transaction or series of related transactions, the Inventory or Receivables so acquired shall not be included in the applicable Borrowing Base (subject to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees the provisions of the definitions “Borrowing Base,” “Eligible Tire Inventory,” “Eligible Non-Tire Inventory” and “Eligible Receivables” until such time as the Agent shall have completed its diligence in respect of such Inventory and Receivables in their Permitted Discretion),; provided that the Inventory and Receivables of Triwest acquired in connection withpursuant to the CanadianRTD Acquisition shall be included in the Canadian Borrowing Base as andsolely to the extent providedincluded in the definition thereof and in the definition of “CanadianRTD Initial Borrowing Base Period” notwithstanding the amalgamation of the Initial Canadian Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in with Triwest.”. In connection with such employees’ exercise diligence, the Agent may obtain, at the expense of their stock options the Borrowers within the applicable Borrowing Group, an appraisal and payment commercial finance exam with respect to such Receivables and Inventory as it may reasonably deem desirable in its Permitted Discretion and such appraisal and exam shall be paid for by the Borrowers within the applicable Borrower Group and shall not be limited by or included in the number of related taxes thereonappraisals and field exams reimbursable under the terms of Section 5.06(b).
Appears in 1 contract
Samples: Credit Agreement (American Tire Distributors Holdings, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 (all of the foregoing, “Investments”)unit, except:
(a) cash and Permitted Investments;
(b) Permitted Acquisitions and Limited Equity Acquisitions; provided, that (i) Investments the aggregate consideration paid in respect of such Permitted Acquisition or Limited Equity Acquisition, when taken together with the aggregate consideration paid in respect of all other Permitted Acquisitions and paid or contributed in respect of all other Limited Equity Acquisitions, does not exceed $275,000,000 during any twelve-month period, (ii) the aggregate consideration paid in respect of any Permitted Acquisition does not exceed $150,000,000, (iii) the aggregate consideration paid in respect of all Limited Equity Acquisitions does not exceed $50,000,000 during any twelve-month period, and (iv) the Leverage Ratio, calculated on a Pro Forma Basis after giving effect to such acquisition, does not exceed 3.00 to 1.00;
(c) investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereofhereof in the capital stock of its Subsidiaries;
(d) investments, (ii) additional Investments loans or advances made by the Borrower in or to any Subsidiary and its Subsidiaries made by any Subsidiary in Loan Parties, (iii) additional Investments by Subsidiaries of or to the Borrower or any other Subsidiary (provided that are 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 in other to Subsidiaries that which are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e);
(ce) Guarantees constituting Indebtedness permitted by Section 6.01; and;
(df) extended payment terms to customers of the Borrower and any Subsidiary in the ordinary course of business and consistent with past practices;
(g) investments in the form of promissory notes and other non-cash consideration received by the Borrower or any Subsidiary in connection with any disposition or discount of accounts receivable to the extent permitted under Section 6.03(a)(v);
(h) loans and advances to officers, directors (i) distributors of the Safeguard services and product lines of the Borrower and its Subsidiaries (other than with respect to a Permitted Safeguard Distributor Transaction) and (ii) officers and employees of the Borrower and or its Subsidiaries in an accordance with prior practices, so long as (x) the aggregate amount of all loans and advances made pursuant to clause (h)(i) above does not to exceed $2,000,000 1,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.(y) the aggregate amount of all loans and advances made pursuant to this Section 6.04(h) does not exceed $5,000,000 at any time;
(ei) Loans to employees investments consisting of the purchase, repurchase, redemption or acquisition of Equity Interests of the Borrower or any Subsidiary permitted under Section 6.07, provided that such Equity Interests so purchased, repurchased, redeemed or acquired are promptly retired and cancelled, other than Equity Interests of the Borrower consisting of capital stock which may be held by the Borrower as treasury stock;
(j) any purchase, repurchase or acquisition by the Borrower or any other Subsidiary of outstanding loans or advances owed by the Borrower to any Subsidiary or owed by any Subsidiary to the Borrower or any other Subsidiary, provided that any such purchase, repurchase or acquisition by a Loan Party from a Subsidiary that is not a Subsidiary Guarantor shall comply with Section 6.06 (without giving effect to the exception under Section 6.06(b));
(k) investments in cumulative Swap Agreements permitted under Section 6.05;
(l) investments of advance payments received from customers to the extent such advance payments shall be permitted under Section 6.01(k);
(m) investments existing on the Amendment No. 3 Effective Date and set forth on Schedule 6.04;
(n) investments, advances or loans having a bona fide purpose directly related to effecting any Permitted Safeguard Distributor Transaction (as determined by the Borrower in its commercially reasonable judgment acting in good faith), including, without limitation, any Permitted Safeguard Sale Consideration; and
(o) any other investment, loan or advance (other than acquisitions) so long as the aggregate amount of all such investments, loans and advances does not to exceed $8,500,000 at 60,000,000 during the term of this Agreement. For purposes of determining the amount of any timeinvestment outstanding for purposes of this Section 6.04, such amount shall be deemed to be the amount of such investment when made, purchased or acquired without adjustment for subsequent increases or decreases in connection with the value of such employees’ exercise of their stock options and payment of related taxes thereoninvestment.
Appears in 1 contract
Samples: Credit Agreement (Deluxe Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 (all of the foregoing, “Investments”)unit, except:
(a) cash and Permitted Investments;
(b) Permitted Acquisitions and Limited Equity Acquisitions; provided, that (i) Investments the aggregate consideration paid in respect of such Permitted Acquisition or Limited Equity Acquisition, when taken together with the aggregate consideration paid in respect of all other Permitted Acquisitions and paid or contributed in respect of all other Limited Equity Acquisitions, does not exceed $275,000,000 during any twelve-month period, (ii) the aggregate consideration paid in respect of any Permitted Acquisition does not exceed $150,000,000, (iii) the aggregate consideration paid in respect of all Limited Equity Acquisitions does not exceed $50,000,000 during any twelve-month period, and (iv) the Leverage Ratio, calculated on a Pro Forma Basis after giving effect to such acquisition, does not exceed 3.00 to 1.00;
(c) investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereofhereof in the capital stock of its Subsidiaries;
(d) investments, (ii) additional Investments loans or advances made by the Borrower in or to any Subsidiary and its Subsidiaries made by any Subsidiary in Loan Parties, (iii) additional Investments by Subsidiaries of or to the Borrower or any other Subsidiary (provided that are 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 in other to Subsidiaries that which are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e);
(ce) Guarantees constituting Indebtedness permitted by Section 6.01; and;
(df) extended payment terms to customers of the Borrower and any Subsidiary in the ordinary course of business and consistent with past practices;
(g) investments in the form of promissory notes and other non-cash consideration received by the Borrower or any Subsidiary in connection with any disposition or discount of accounts receivable to the extent permitted under Section 6.03(a)(v);
(h) loans and advances to officers, directors officers and employees of the Borrower and or its Subsidiaries in an aggregate amount accordance with prior practices not to exceed $2,000,000 5,000,000 outstanding at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.time;
(ei) Loans to employees investments consisting of the purchase, repurchase, redemption or acquisition of Equity Interests of the Borrower or any Subsidiary permitted under Section 6.07, provided that such Equity Interests so purchased, repurchased, redeemed or acquired are promptly retired and cancelled, other than Equity Interests of the Borrower consisting of capital stock which may be held by the Borrower as treasury stock;
(j) any purchase, repurchase or acquisition by the Borrower or any other Subsidiary of outstanding loans or advances owed by the Borrower to any Subsidiary or owed by any Subsidiary to the Borrower or any other Subsidiary, provided that any such purchase, repurchase or acquisition by a Loan Party from a Subsidiary that is not a Subsidiary Guarantor shall comply with Section 6.06 (without giving effect to the exception under Section 6.06(b));
(k) investments in cumulative Swap Agreements permitted under Section 6.05;
(l) investments of advance payments received from customers to the extent such advance payments shall be permitted under Section 6.01(k);
(m) investments existing on the date hereof and set forth on Schedule 6.04; and
(n) any other investment, loan or advance (other than acquisitions) so long as the aggregate amount of all such investments, loans and advances does not to exceed $8,500,000 at 35,000,000 during the term of this Agreement. For purposes of determining the amount of any timeinvestment outstanding for purposes of this Section 6.04, such amount shall be deemed to be the amount of such investment when made, purchased or acquired without adjustment for subsequent increases or decreases in connection with the value of such employees’ exercise of their stock options and payment of related taxes thereoninvestment.
Appears in 1 contract
Samples: Credit Agreement (Deluxe Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(ib) Investments investments by the Borrower and Company in the capital stock of its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)Subsidiaries;
(c) loans or advances made by the Company to any wholly-owned Subsidiary and made by any Subsidiary to the Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) investments by the Company or its Subsidiaries in any Person (other than a Subsidiary) in an aggregate amount for all Persons not exceeding $25,000,000;
(f) any acquisition of the capital stock or substantially all of the assets of any Person by the Company or any of its Subsidiaries; provided that (i) at the time thereof and after giving effect thereto no Default shall have occurred and be continuing, (ii) the Company would be in compliance with Sections 6.10 and 6.11 for the most recent calculation period and as of the last day thereof as if such acquisition had been consummated at the beginning of such calculation period, (iii) any acquired business shall be of the type conducted by the Company and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto and (iv) in the case of any such acquisition of any capital stock of or other ownership interest in any Person which is not then a Subsidiary, such acquisition will result in such Person becoming a Subsidiary; and
(dg) advances to officersinvestments by General Cable Industries, directors and employees of Inc. after the Borrower and Subsidiaries date hereof in an aggregate amount not to exceed exceeding $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes10,000,000 in a joint venture known as General Photonics LLC.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly Owned Subsidiary prior to such merger) any capital 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”)unit, except:
(a) Permitted Temporary Cash Investments;
(ib) Investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding investments existing on the date hereof, (ii) additional Investments by the Borrower Restatement Effective Date and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)set forth on Schedule 6.05;
(c) investments by the Borrower existing on the date hereof in the capital stock of its Subsidiaries; provided that any such shares of capital stock that constitute Designated Equity Interests shall be pledged pursuant to the Pledge Agreement;
(d) loans or advances made by the Borrower to any Designated Subsidiary and made by any Subsidiary to the Borrower or any Designated Subsidiary;
(e) Guarantees constituting Indebtedness permitted by Section 6.01; and;
(df) advances 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) acquisitions by the Borrower or any Subsidiary related to officers, directors and employees of the business conducted by the Borrower and the Subsidiaries in an on the Restatement Effective Date or to a Related Business and constituting a Capital Expenditure; provided that the aggregate amount during any fiscal year of (x) all such acquisitions, (y) all investments permitted under clause (i) of this Section and (z) all other Capital Expenditures does not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.the amount permitted during such year under clause (c) of Section 6.12;
(eh) Loans investments by the Borrower or any Subsidiary in (A) licenses, concessions or permits required to employees provide, or related to, the cellular telephone service and data transmission service and (B) any Related Business in Mexico; provided that the aggregate principal amount during any fiscal year of the Borrower in cumulative aggregate sum of (x) such investments, (y) the acquisitions permitted under clause (g) of this Section and (z) all other Capital Expenditures does not exceed the amount not to exceed $8,500,000 at any time, in connection with permitted during such employees’ exercise fiscal year under clause (c) of their stock options and payment of related taxes thereon.Section 6.12
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. 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 mergermerger 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 (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(ib) Investments Permitted Acquisitions;
(c) investments by the Borrower and its Subsidiaries existing on the date hereof in the capital stock of their respective Subsidiaries, investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding a Loan Party and investments by any Person existing on the date hereofsuch Person is acquired as part of a Permitted Acquisition;
(d) investments, (ii) additional Investments loans or advances made by the Borrower in or to any Subsidiary and its Subsidiaries made by any Subsidiary in Loan Parties, (iii) additional Investments by Subsidiaries of or to the Borrower or any other Subsidiary (provided that are not more than an aggregate amount of $50,000,000 in investments, loans or advances or capital contributions may be made and remain outstanding, at any time, by Loan Parties in other to Subsidiaries that which are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e);
(ce) Guarantees constituting Indebtedness permitted by Section 6.01;
(f) any other investment, loan or advance (other than acquisitions) so long as the aggregate amount of all such investments, loans and advances does not exceed $75,000,000 during the term of this Agreement; andprovided that, if at the time of the making of such other investment, loan or advance and immediately after giving effect (including giving effect on a pro forma basis) thereto, the Total Leverage Ratio is less than 3.00 to 1.00, there shall be no Dollar limitation on such investment, loan or advance.
(g) investments in the form of Swap Agreements permitted by Section 6.05;
(h) investments constituting deposits described in clauses (c) and (d) of the definition of “Permitted Encumbrances”;
(i) Loans and advances to officers, directors and employees for moving, entertainment, travel and other similar expenses in the ordinary course of the Borrower and Subsidiaries in an aggregate amount business not to exceed $2,000,000 in the aggregate at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.;
(ej) Loans to employees extensions of trade credit in the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, ordinary course of business;
(k) investments arising in connection with the incurrence of Indebtedness expressly permitted by Section 6.01; and
(l) investments outstanding on the date hereof and, to the extent such employees’ exercise investments have positive book value as of their stock options and payment of related taxes thereonJuly 2, 2011, described on Schedule 6.04.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such mergeror amalgamation) 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 Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (or all or substantially all of the foregoingassets of a division or branch of any Person (any one of the actions described in the foregoing provisions of this Section 6.04, herein an “InvestmentsInvestment”), except:
(a) Permitted InvestmentsInvestments in connection with the Transactions; provided that such transactions are consummated in all material respects in accordance with the Offer Documents;
(ib) Investments by in the Borrower form of cash, Cash Equivalents and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional that were Cash Equivalents when such Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)were made;
(c) Guarantees constituting Indebtedness Investments arising in connection with Swap Agreements permitted by Section 6.01; and6.12;
(d) loans and advances to future, present or former officers, directors and employees directors, employees, members of management or consultants of the Borrower or any Parent Company made (i) in the ordinary course of business for travel and Subsidiaries entertainment expenses, relocation costs and similar purposes or consistent with past practices and (ii) in connection with such Person’s purchase of Equity Interests of the Borrower or any Parent Company; provided that, to the extent such loans or advances are made in cash, the amount of such loans and advances used to acquire such Equity Interests shall be contributed or paid to the Borrower in cash, and (iii) for any other purpose in an aggregate amount not to exceed $2,000,000 5,000,000 for all such loans and advances in the aggregate at any one time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.;
(e) Loans to employees the Borrower may make Investments in other Equity Interests of the Borrower Company (other than Company Shares) in cumulative aggregate an amount not to exceed $8,500,000 the amount of the Net Proceeds actually received in cash by the Borrower from and after the Closing Date to such date from any capital contributions to, or the sale of Equity Interests of, the Borrower which are Not Otherwise Applied; provided, that, for the avoidance of doubt, any Investment in other Equity Interest pursuant to this clause (e) shall be subject to a valid, first priority perfected Lien in favor of the Collateral Agent for the benefit of the Secured Parties in accordance with the Loan Documents and the Perfection Requirements within five (5) Business Days;
(f) Investments consisting of Indebtedness, Liens, Dispositions, Restricted Payments and Affiliate transactions permitted under Sections 6.01, 6.02, 6.05, 6.06 and 6.07, respectively;
(g) advances of payroll payments to employees in the ordinary course of business;
(h) Investments (i) consisting of endorsements for collection or deposit and (ii) resulting from pledges and/or deposits permitted by Sections 6.02(d) and (f), in each case, in the ordinary course of business;
(i) other Investments of the Borrower (other than any acquisition of Company Shares) in an aggregate amount at any time, time outstanding not to exceed $10,000,000;
(j) endorsements of negotiable instruments and documents in the ordinary course of business;
(k) Investments made in connection with the funding of contributions under any non-qualified retirement plan or similar employee compensation plan in an amount not to exceed the amount of compensation expense recognized by the Borrower in connection with such employees’ exercise plans; and
(l) any acquisition of their stock options Company Shares so long as the Borrower does not at any time own more than 75% of the issued and payment outstanding Company Shares in the aggregate. For purposes of related taxes thereoncompliance with this Section 6.04, the amount of any Investment shall be the amount actually invested (measured at the time made), without adjustment for subsequent increases or decreases in the value of such Investment but giving effect to any returns or distributions of capital or repayment of principal actually received in cash by such other Person with respect thereto (but only to the extent that the aggregate amount of all such returns, distributions and repayments with respect to such Investment does not exceed the principal amount of such Investment); provided, that, for the avoidance of doubt, the Borrower shall not at any time own more than 75% of the issued and outstanding Company Shares in the aggregate. Any Investment that exceeds the limits of any particular clause set forth above may be allocated among more than one of such clauses (other than Section 6.04(l)) to permit the incurrence or holding of such Investment to the extent such excess is permitted as an Investment under such other clauses; provided, that, for the avoidance of doubt, the Borrower shall not at any time own more than 75% of the issued and outstanding Company Shares in the aggregate.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions, provided that the aggregate purchase price, which shall be deemed to include (i) Investments any amounts actually paid pursuant to any post-closing payment adjustments, earn-outs or non-compete payments and (ii) the principal amount of Indebtedness that is assumed pursuant to Section 6.01(a)(vii) or otherwise incurred in connection with such Permitted Acquisition, shall not exceed $25,000,000 in any fiscal year and $50,000,000 in the aggregate plus, in each case (without duplication) (A) an amount equal to any returns of capital or sale proceeds actually received in cash in respect of any such Permitted Acquisition (which amount shall not exceed the purchase price paid (including the principal amount of Indebtedness assumed pursuant to Section 6.01(a)(vii)) in connection therewith) in respect of such Permitted Acquisition) and (B) any Qualified Equity Interests issued in payment of any portion of such purchase price and the Net Proceeds of the issuance of Qualified Equity Interests (to the extent such Net Proceeds are used to pay any portion of such purchase price);
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower and its the Subsidiaries in Equity Interests in their respective Subsidiaries outstanding on Subsidiaries, provided that (i) any such Equity Interests held by a Loan Party shall be pledged pursuant to the date hereof, Collateral Agreement (subject to the limitations applicable to Equity Interests of a Foreign Subsidiary referred to in the definition of the term “Collateral and Guarantee Requirement”) and (ii) additional Investments the aggregate amount of investments made pursuant to this clause (ii) by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties (together with outstanding intercompany loans permitted under clause (ii) to the proviso to paragraph (e) of this Section and outstanding Guarantees permitted under the proviso to paragraph (f) of this Section) shall not exceed $1,000,000 at any time outstanding (in an aggregate amount invested from the date hereof not each case determined without regard to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(eany write-downs or write-offs);
(ce) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary to the 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 Collateral Agreement and (ii) the amount of such loans and advances made pursuant to this clause (ii) by Loan Parties to Subsidiaries that are not Loan Parties (together with investments permitted under clause (ii) of paragraph (d) of this Section and outstanding Guarantees permitted under the proviso to paragraph (f) of this Section) shall not exceed $1,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(f) Guarantees constituting of Indebtedness of the Borrower or any Subsidiary that are permitted by Section 6.01; and
, provided that the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party (together with investments permitted under clause (ii) to the proviso of paragraph (d) advances of this Section and intercompany loans permitted under clause (ii) to officers, directors and employees the proviso to paragraph (e) of the Borrower and Subsidiaries in an aggregate amount this Section) shall not to exceed $2,000,000 1,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.outstanding (in each case determined without regard to any write-downs or write-offs);
(eg) Loans loans or advances to employees of the Borrower or any Subsidiary made in cumulative the ordinary course of business of the Borrower or any Subsidiary not exceeding $500,000 in the aggregate amount not to exceed $8,500,000 outstanding at any timetime (determined without regard to any write-downs or write-offs of such loans or advances);
(h) payroll, travel 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 Subsidiary for accounting purposes and that are made in the ordinary course of business;
(i) 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;
(j) investments in the form of Swap Agreements permitted by Section 6.07;
(k) 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 or in connection with such employees’ exercise Person becoming a Subsidiary or of their stock options such consolidation or merger;
(l) investments resulting from pledges or deposits described in clause (c) or (d) of the definition of the term “Permitted Encumbrance”;
(m) investments received in connection with the disposition of any asset permitted by Section 6.05;
(n) receivables or other trade payables owing to the Borrower or a Subsidiary if created or acquired in the ordinary course of business and payment payable or dischargeable in accordance with customary trade terms, provided that such trade terms may include such concessionary trade terms, as the Borrower or any Subsidiary deems reasonable under the circumstances; and
(o) other investments, loans and advances by the Borrower or any Subsidiary in an aggregate amount, as valued at cost at the time each such investment is made and including all related commitments for future advances and the principal amount of related taxes thereonany Indebtedness that is assumed or otherwise incurred in connection with such investments, loans and advances, not exceeding $1,000,000 in the aggregate for all such investments made or committed to be made from and after the Effective Date plus an amount equal to any returns of capital or sale proceeds actually received in cash in respect of any such investments (which amount shall not exceed the amount of such investment valued at cost at the time such investment was made).
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries (other than VR Partners and its subsidiaries until the Rockpoint Redemption) to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(ib) Investments by the Borrower investments in Real Estate and its Subsidiaries in their respective Subsidiaries outstanding other properties and assets existing on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e);
(c) investments by the Borrower in the capital stock of its Subsidiaries;
(d) loans or advances (i) made by the Borrower to any Wholly Owned Subsidiary and made by any Wholly Owned Subsidiary to the Borrower or any other Wholly Owned Subsidiary and (ii) until the Rockpoint Redemption, made by the Borrower to VR Partners;
(e) Guarantees constituting Indebtedness permitted by Section 6.016.01(b) and Section 6.01(f);
(f) investments with Eligible Cash 1031 Proceeds following any 1031 Asset Disposition; and
(dg) advances to officers, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstandingafter the Term Loans have been repaid in full, for travel, entertainment, relocation (i) additional Real Estate and analogous ordinary business purposes(ii) investments with Eligible Cash 1031 Proceeds following any Asset Disposition other than a 1031 Asset Disposition.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Veris Residential, L.P.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and Loan Parties will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness 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 Investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(b) Investments existing on the Closing Date, and set forth on Schedule 6.04;
(c) Loans or advances made by the Parent to the Borrower;
(d) Equity Investments made by the Parent in the Borrower;
(e) Guarantees constituting Indebtedness permitted by SECTION 6.01;
(f) 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) Permitted Acquisitions;
(h) Loans or advances to employees for the purpose of travel or entertainment in the ordinary course of business in an amount not to exceed $500,000 in the aggregate at any time outstanding, and loans or advances to employees for the purpose of relocation in the ordinary course of business in an amount not to exceed $3,000,000 in the aggregate at any time outstanding;
(i) Investments by Loans or advances not to exceed $50,000,000 in the Borrower and its Subsidiaries in their respective Subsidiaries aggregate at any time outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries to a Subsidiary of the Borrower for the purpose of an Investment in, a purchase of stock or equity interest in, a purchase of all or a substantial part of the assets or properties of any Person relating to the pharmacy benefit management industry, or any transaction, merger or consolidation or acquisition of all or a substantial portion of the assets of any Person relating to the pharmacy benefit management industry, provided that are prior to any Loan Party making such loans or advances, the Borrower shall have had Excess Availability for each of the sixty (60) days prior to the date of such loan or advance, and shall have projected Excess Availability for each of the ninety (90) days after giving effect to such loan or advance, of at least twenty-five percent (25%) of the then Borrowing Base; and
(j) Other Investments not Loan Parties to exceed $50,000,000 in other Subsidiaries the aggregate at any time outstanding, provided that are not Loan Parties; with respect to all Investments which result in the aggregate permitted under this clause (j) to exceed $10,000,000, prior to making any such Investment, the Borrower shall have had Excess Availability for each of the sixty (60) days prior to the date of such Investment, and shall have projected Excess Availability for each of the ninety (iv90) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and days after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in whollyof at least twenty-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of five percent (A25%) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e);
(c) Guarantees constituting Indebtedness permitted by Section 6.01; and
(d) advances to officers, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposesthen Borrowing Base.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 mergermerger 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 (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
(c) (i) Investments investments by the Borrower Company and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereof, hereof in the capital stock of its Subsidiaries and (ii) additional Investments intercompany loans and advances described on Schedule 6.01 hereto;
(d) investments, loans or advances made by the Borrower Company in or to any Subsidiary and its Subsidiaries made by any Subsidiary in Loan Partiesor to the Company or any other Subsidiary (provided that not more than an aggregate amount of $300,000,000 in investments, (iii) additional Investments loans or advances or capital contributions may be made and remain outstanding, at any time, by Subsidiaries of the Borrower that are not Loan Parties in other to Subsidiaries that which are not Loan Parties; provided that (i) no such Dollar limitation shall apply if at the time of incurrence of any applicable Indebtedness or the making of any applicable investment, loan or advance and immediately after giving effect (on a Pro Forma Basis) thereto, the Leverage Ratio is equal to or less than 2.00 to 1.00 and (ivii) intercompany accounts receivable and accounts payable arising in the ordinary course of business for services rendered or the purchase or sale of assets among the Company and its Subsidiaries shall not count against any limitation set forth in this Section 6.04(d) and shall be permitted under this Section 6.04(d) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is arrangements are in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e6.06(a));
(ce) Guarantees of trade account payables incurred by the Borrower or any of its Subsidiaries in the ordinary course of business and on payment terms not to exceed 120 days;
(f) Guarantees constituting Indebtedness permitted by Section 6.01;
(g) Swap Agreements permitted by Section 6.05 below;
(h) loans or advances to employees, officers or directors of the Company or any Subsidiary in the ordinary course of business for travel, relocation and related expenses;
(i) Equity Interests in the ordinary course of business and consistent with past practices in connection with the satisfaction or enforcement of Indebtedness or litigation or other claims due or owing to the Company or such Subsidiary or as security for any such Indebtedness or litigation or claim; and
(dj) advances to officersany other investment, directors and employees of loan or advance (other than acquisitions) so long as the Borrower and Subsidiaries in an aggregate amount of all such investments, loans and advances does not to exceed $2,000,000 50,000,000 in the aggregate at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Samples: Credit Agreement (Newmarket Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(ib) Investments investments in existence on the date of this Agreement and described in Schedule 6.04;
(c) investments by the Borrower and its Subsidiaries in the capital stock of their respective Subsidiaries; provided that the aggregate amount of investments, as of any date of determination, made by the Borrower or the other Loan Parties in the capital stock of their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that who are not Loan Parties in other Subsidiaries that are does not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately 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 and after giving effect to such Investmentdate 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);
(d) loans or advances made by the Borrower is in compliance with Section 6.13, additional Investments or any of its Subsidiaries to the Borrower or any other Subsidiary; provided that the aggregate amount of loans and advances made by the Borrower or the other Loan Parties in wholly-owned to Subsidiaries that who are not Loan Parties in that are at any time outstanding does not, as of any date of determination, exceed an aggregate amount invested from equal to 50% of the EBITDA for the period of four consecutive fiscal quarters having most recently ended prior to such date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)determination and for which financial statements are available;
(ce) Guarantees constituting Indebtedness permitted by Section 6.01;
(f) Permitted Acquisitions;
(g) loans and advances to employees of the Borrower or any Subsidiaries in the ordinary course of business (including for travel, entertainment and relocation expenses and to finance the purchase of Equity Interests of the Borrower) in an aggregate amount for the Borrower and its Subsidiaries not to exceed $2,500,000 at any time outstanding;
(h) 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;
(i) Swap Agreements permitted by Section 6.06;
(j) Transfer Pricing Transactions;
(k) 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
(dl) in addition to investments otherwise expressly permitted by this Section, investments, loans and advances to officers, directors and employees of by the Borrower and or any of its Subsidiaries in an aggregate amount (valued at cost) not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes10,000,000 during the term of this Agreement.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold purchase or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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 Indebtedness of any other interest in, any other Person, Person or purchase or otherwise acquire (in one transaction or a series of transactions) 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 property and assets or business of another Person (all of the foregoing, foregoing being collectively called “Investments”), except:
(a) Permitted Investments and Permitted Foreign Investments;
(ib) Investments existing on, or contractually committed on, the Effective Date and set forth on Schedule 6.04 to the Disclosure Letter;
(c) [Reserved];
(d) Investments by the Borrower any Loan Party in (i) Persons that, immediately prior to such Investments, are Loan Parties and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Restricted Subsidiaries that are not Loan Parties; provided that the aggregate amount of all such Investments made in reliance on this clause (ii) shall not exceed the greater of $25,000,000 and 15.0% of Consolidated EBITDA for the most recently ended Test Period per fiscal year of Borrower;
(e) Investments by any Restricted Subsidiary that is not a Loan Party in the Borrower or any other Restricted Subsidiary;
(f) Investments held by any Person acquired in any Permitted Acquisition at the time of such Permitted Acquisition (and not acquired in contemplation of the Permitted Acquisition);
(g) Investments constituting an acquisition of the Equity Interests in a Person that becomes a Restricted Subsidiary or all or substantially all of the assets (or all or substantially all of the assets constituting a business unit, division, product line or line of business) of any Person; provided that (i) no Event of Default shall have occurred and be continuing at the time of, or after giving effect to, such acquisition, (ii) the Borrower and its Restricted Subsidiaries shall, upon giving effect to such acquisition, be in compliance with Section 6.03(b), (iii) the acquired company and its subsidiaries (other than any Unrestricted Subsidiary) shall become Guarantors and pledge their collateral to the Collateral Agent to the extent required by Section 5.11, and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the aggregate amount of all acquisition consideration paid by the Borrower is and its Restricted Subsidiaries in compliance connection with Section 6.13, additional Investments and acquisitions made in reliance on this clause (g) attributable to the acquisition of acquired entities that do not become Guarantors and the acquisition of assets by the Loan Parties in wholly-owned Restricted Subsidiaries that are not Loan Parties shall not, in an aggregate amount invested from the date hereof not aggregate, exceed at the time any such Investment is made the greater of $35,000,000 and 20.0% of Consolidated EBITDA for the most recently ended Test Period after giving effect to exceed the sum making of such Investment on a Pro Forma Basis (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(eeach, a “Permitted Acquisition”);.
(ch) Guarantees constituting Indebtedness permitted by Section 6.01; andprovided that a Loan Party shall not Guarantee any Indebtedness of a Restricted Subsidiary that is not a Loan Party pursuant to this paragraph (h);
(di) Investments (a) 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 or (b) of noncash consideration received by the Borrower or any Restricted Subsidiary for a Disposition of assets otherwise permitted hereunder;
(j) accounts receivable and extensions of trade credit arising in the ordinary course of business;
(k) Investments held by any Restricted Subsidiary at the time it becomes a Subsidiary in a transaction permitted by this Section 6.04 (and not acquired in contemplation of becoming a Subsidiary);
(l) advances to officers, directors and employees of the Borrower and any Restricted Subsidiary for travel or as advances of payroll payments, in each case, arising in the ordinary course of business;
(m) loans to officers, directors, employees and consultants of the Borrower or any Restricted Subsidiary, not to exceed $5,000,000 in the aggregate at any one time outstanding;
(n) promissory notes and other noncash consideration received by the Borrower and its Restricted Subsidiaries in connection with any Disposition permitted hereunder;
(o) advances in the form of prepayments of expenses, so long as such expenses were incurred in the ordinary course of business and are paid in accordance with customary trade terms of the Borrower or any of its Restricted Subsidiaries;
(p) Guarantees by the Borrower or any of its Restricted Subsidiaries of obligations of any Restricted Subsidiary or the Borrower incurred in the ordinary course of business and not constituting Indebtedness;
(q) Investments consisting of Indebtedness, Liens, fundamental changes, Dispositions and Restricted Payments permitted (other than by reference to this Section 6.04(q)) under Sections 6.01, 6.02, 6.03, 6.05 and 6.08, respectively;
(r) other Investments so long as on the date such Investment is made, (i) no Event of Default shall have occurred and be occurring or would result therefrom and (ii) the Total Leverage Ratio as of the last day of the most recent Test Period at the time such Investment is made on a Pro Forma Basis is no greater than 3.75 to 1.00;
(s) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(t) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of the Borrower or with Net Proceeds of any issuance of Qualified Equity Interests of the Borrower in each case, to the extent such Qualified Equity Interests are not used to make prepayments or distributions pursuant to Section 6.06(a)(xi)(y), Section 6.06(b)(iii) or are used to increase the Available Amount;
(i) intercompany advances among the Borrower and its Restricted Subsidiaries arising from their cash management, tax and accounting operations and (ii) intercompany loans, advances, or Indebtedness among the Borrower and its Restricted Subsidiaries having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business;
(v) Investments represented by Swap Agreements permitted under Section 6.01;
(w) other Investments in an aggregate amount not to exceed $2,000,000 the Available Amount; provided that, at any the time outstandingeach Investment is made, for travel, entertainment, relocation and analogous ordinary business purposes.the Total Leverage Ratio as of the last day of the most recent Test Period on a Pro Forma Basis is no greater than 4.50 to 1.00;
(ex) Loans other Investments; provided that at the time any such Investment is made the aggregate amount of Investments made in reliance on this clause (x) shall not to employees exceed the greater of $52,500,000 and 30.0% of Consolidated EBITDA for the most recently ended Test Period as of such time after giving effect to the making of such Investment on a Pro Forma Basis; and
(y) Permitted Call Spread Agreements and Permitted Forward Agreements, in each case which constitute Investments. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, less any return of capital, without adjustment for subsequent increases or decreases in the value of such Investment. For the avoidance of doubt, the acquisition by the Borrower and its Restricted Subsidiaries of Intellectual Property in the ordinary course of their respective businesses shall not be considered an Investment. To the extent an Investment is permitted to be made by a Loan Party directly in any Restricted Subsidiary or any other Person who is not a Loan Party (each such Restricted Subsidiary or other Person, a “Target Person”) under any provision of this Section 6.04, such Investment may be made by advance, contribution or distribution by a Loan Party to a Restricted Subsidiary (and further advanced, contributed or distributed to another Restricted Subsidiary) for purposes of making the relevant Investment in (or effecting an acquisition of) the Target Person without constituting an Investment for purposes of Section 6.04 (it being understood that such Investment or Acquisition must satisfy the requirements of, and shall count towards any thresholds in, a provision of this Section 6.04 as if made by the applicable Loan Party directly in the Target Person). For purposes of determining compliance with this Section 6.04, if any Investment (or a portion thereof) would be permitted pursuant to one or more provisions described above, the Borrower may divide and classify, and subsequently re-divide and/or reclassify (including to reclassify utilization of any Fixed Amounts as incurred under any available Incurrence Based Amounts, including any Financial Incurrence Tests), such Investment (or a portion thereof) in any manner that complies with this covenant. Notwithstanding anything to the contrary herein, in no event shall the Borrower or any Guarantor make Investments pursuant to this Section 6.04 consisting of any intellectual property that is material to the business of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any timeand its Restricted Subsidiaries, taken as a whole, in connection with such employees’ exercise of their stock options and payment of related taxes thereonany Restricted Subsidiary that is not a Guarantor or in an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Maxlinear Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Company will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger) any capital 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”or material portion thereof), except:
(a) Permitted Investments;
(ib) Investments by with respect to any Foreign Subsidiary, direct obligations of, or obligations the Borrower principal of and interest on which are unconditionally guaranteed by, the government of the country in which such Foreign Subsidiary is organized or has its Subsidiaries principal place of business, in their respective Subsidiaries outstanding on each case maturing within one year from the date hereofof acquisition thereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made all such obligations for all Foreign Subsidiaries does not exceed $5,000,000 in compliance with Section 6.07(e)the aggregate 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) loans or advances made after the Effective Date by the Company to any Wholly-Owned Subsidiary or by any Wholly-Owned Subsidiary to the Company or any other Wholly-Owned Subsidiary; provided that, upon request of the Required Lenders, such loans or advances shall be evidenced by a promissory note in form and substance reasonably acceptable to the Required Lenders;
(e) Guarantees constituting Indebtedness permitted by Section 6.016.01 and Guarantees by the Company of rental obligations or accounts payable of any Subsidiary;
(f) 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 in connection with a sale of assets permitted by Section 6.07 to the extent of the non-cash consideration received by the Company or a Subsidiary;
(h) Permitted Business Acquisitions so long as (i) the aggregate consideration paid by the Company and the Subsidiaries in respect of any such Permitted Business Acquisition does not exceed (A) in the case of acquisitions of Domestic Subsidiaries or assets in the United States, $50,000,000, and (B) in the case of acquisitions of Foreign Subsidiaries or assets outside of the United States, $30,000,000, and (ii) the aggregate cash and non-cash consideration (including the concurrent repayment or assumption of any indebtedness) paid by the Company and the Subsidiaries in respect of such Permitted Business Acquisition and all prior Permitted Business Acquisitions during the same fiscal quarter of the Company and the prior three fiscal quarters of the Company does not exceed $100,000,000;
(i) investments by the Company or any Subsidiary existing on the date hereof and set forth in Schedule 6.04;
(j) investments by the Company or any Subsidiary after the Effective Date in Joint Ventures that do not exceed $20,000,000 in the aggregate at any time outstanding; and
(dk) advances investments in addition to officers, directors and employees those permitted by (a) through (j) by the Company or any Subsidiary (including investments made to meet minimum capital requirements of the Borrower and Subsidiaries in an aggregate amount foreign jurisdictions) that do not to exceed $2,000,000 5,000,000 in the aggregate for the Company and all Subsidiaries at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Samples: Credit Agreement (Photronics Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold purchase or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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 Indebtedness of any other interest in, any other Person, Person or purchase or otherwise acquire (in one transaction or a series of transactions) 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 property and assets or business of another Person (all of the foregoing, foregoing being collectively called “Investments”), except:
(a) Permitted Investments and Permitted Foreign Investments;
(ib) Investments existing on the Effective Date and set forth on Schedule 6.04;
(c) Investments existing on the Effective Date in Restricted Subsidiaries;
(d) Investments in Persons that, immediately prior to such Investments, are Loan Parties;
(e) Investments by any Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary;
(f) Investments held by any Person acquired in any Permitted Acquisition at the time of such Permitted Acquisition (and not acquired in contemplation of the Permitted Acquisition);
(g) Investments constituting an acquisition of the Equity Interests in a Person that becomes a Restricted Subsidiary or all or substantially all of the assets (or all or substantially all of the assets constituting a business unit, division, product line or line of business) of any Person; provided that (i) no Event of Default shall have occurred and be continuing at the time of entry into the related acquisition agreement, (ii) the Borrower and its Restricted Subsidiaries shall, upon giving effect to such acquisition, be in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Partiescompliance with Section 6.03(b), (iii) additional Investments the acquired company and its subsidiaries (other than any Unrestricted Subsidiary) shall become Guarantors and pledge their collateral to the Collateral Agent to the extent required by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; Section 5.11, and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments all acquisition consideration paid by Loan Parties in connection with Investments and acquisitions made in compliance with Section 6.07(ereliance on this clause (g) attributable to the acquisition of acquired entities that do not become Guarantors shall not exceed at the time any such Investment is made the greater of $50,0000,000 and 20% of Consolidated EBITDA for the most recently ended Test Period after giving effect to the making of such Investment on a Pro Forma Basis (each, a “Permitted Acquisition”);.
(ch) Guarantees constituting Indebtedness permitted by Section 6.01; andprovided that a Loan Party shall not Guarantee any Indebtedness of a Restricted Subsidiary that is not a Loan Party pursuant to this paragraph (h);
(di) 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;
(j) accounts receivable and extensions of trade credit arising in the ordinary course of business;
(k) Investments held by any Restricted Subsidiary at the time it becomes a Subsidiary in a transaction permitted by this Section 6.04;
(l) advances to officers, directors officers and employees of the Borrower and Subsidiaries any Restricted Subsidiary for travel arising in an aggregate amount the ordinary course of business;
(m) loans to officers and employees of the Borrower or any Restricted Subsidiary, not to exceed $2,000,000 in the aggregate at any one time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.;
(en) Loans to employees promissory notes and other noncash consideration received by the Borrower and its Restricted Subsidiaries in connection with any Disposition permitted hereunder;
(o) advances in the form of prepayments of expenses, so long as such expenses were incurred in the ordinary course of business and are paid in accordance with customary trade terms of the Borrower or any of its Restricted Subsidiaries;
(p) Guarantees by the Borrower or any of its Restricted Subsidiaries of obligations of any Restricted Subsidiary or the Borrower incurred in cumulative aggregate the ordinary course of business and not constituting Indebtedness;
(q) Investments consisting of Indebtedness, Liens, fundamental changes, Dispositions and Restricted Payments permitted (other than by reference to this Section 6.04(q)) under Sections 6.01, 6.02, 6.03, 6.05 and 6.08, respectively;
(r) other Investments so long as on the date such Investment is made, (i) no Event of Default shall have occurred and be occurring and (ii) the Total Leverage Ratio as of the last day of the most recent Test Period for which financial statements have been delivered pursuant to Section 5.01 or Section 4.01(j) at the time such Investment is made on a Pro Forma Basis is no greater than 2.50 to 1.00;
(s) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(t) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of the Borrower or with Net Proceeds of any issuance of Qualified Equity Interests of the Borrower;
(u) (i) intercompany advances arising from their cash management, tax and accounting operations and (ii) intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business;
(v) Investments represented by Swap Agreements permitted under Section 6.01;
(w) other Investments in an amount not to exceed the Available Amount; provided that, at the time each Investment is made (other than in reliance on clause (a) of the definition of “Available Amount”), the Total Leverage Ratio as of the last day of the most recent Test Period for which financial statements have been delivered pursuant to Section 5.01 or Section 4.01(j) on a Pro Forma Basis is no greater than 3.50 to 1.00;
(x) other Investments; provided that at the time any such Investment is made the aggregate amount of Investments made in reliance on this clause (x) shall not to exceed the greater of $8,500,000 at 75,000,000 and 30% of Consolidated EBITDA for the most recently ended Test Period as of such time after giving effect to the making of such Investment on a Pro Forma Basis; and
(y) Investments made to effect the Integration Plan, the Quasar Acquisition, and the Merger, and the Interim Term Loan Assumption (if applicable). For purposes of covenant compliance, the amount of any timeInvestment shall be the amount actually invested, less any return of capital, without adjustment for subsequent increases or decreases in connection with the value of such employees’ exercise Investment. For the avoidance of doubt, the acquisition by the Borrower and its Restricted Subsidiaries of Intellectual Property in the ordinary course of their stock options respective businesses shall not be considered an Investment. To the extent an Investment is permitted to be made by a Loan Party directly in any Restricted Subsidiary or any other Person who is not a Loan Party (each such Restricted Subsidiary or other Person, a “Target Person”) under any provision of this Section 6.04, such Investment may be made by advance, contribution or distribution by a Loan Party to a Restricted Subsidiary (and payment further advanced, contributed or distributed to another Restricted Subsidiary) for purposes of related taxes thereonmaking the relevant Investment in (or effecting an acquisition of) the Target Person without constituting an Investment for purposes of Section 6.04 (it being understood that such Investment or Acquisition must satisfy the requirements of, and shall count towards any thresholds in, a provision of this Section 6.04 as if made by the applicable Loan Party directly in the Target Person). For purposes of determining compliance with this Section 6.04, if any Investment (or a portion thereof) would be permitted pursuant to one or more provisions described above, the Borrower may divide and classify such Investment (or a portion thereof) in any manner that complies with this covenant.
Appears in 1 contract
Samples: Credit Agreement (Cavium, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all of the foregoingeach such action, an “InvestmentsInvestment”), except:
(a) Permitted Investmentsinvestments in cash and Cash Equivalents;
(ib) Investments investments in existence 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 by the terms of such Investment or as otherwise permitted by this Section 6.04;
(c) investments by the Borrower and its Subsidiaries in the capital stock of 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) (excluding any amounts relating to the processing of payments on the Borrower’s and its Subsidiaries’ payments platform and any intercompany accounts payable in connection therewith) and amounts described in clause (h) of the definition of “Permitted Acquisition”), as of any date of determination, made by the Borrower or the other Loan Parties in the capital stock of their respective Subsidiaries outstanding who are not Loan Parties does not at any time exceed an amount equal to $150 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 Subsidiary thereof in connection with the sale of any such investment);
(d) loans or advances made by the Borrower or any of its Subsidiaries to the Borrower or any other Subsidiary; provided, that the aggregate amount of loans and advances, excluding any amounts relating to the processing of payments on the Borrower’s and its Subsidiaries’ payments platform and any intercompany accounts payable in connection therewith, together with the aggregate amount of investments described in Section 6.04(c) and amounts described in clause (h) of the definition of “Permitted Acquisition,” 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 hereofof determination, exceed an amount equal to $150 million;
(e) Guarantees constituting Indebtedness permitted by Section 6.01 and guarantees of ordinary course commercial obligations not constituting Indebtedness;
(i) Permitted Acquisitions and (ii) additional Investments by of any Person in existence at the time such Person becomes a Subsidiary; provided, that such Investment was not made in connection with or anticipation of such Person becoming a Subsidiary and any modification, replacement, renewal or extension thereof;
(g) loans and advances to employees of the Borrower or any Subsidiaries in the ordinary course of business to finance the purchase of Equity Interests of the Borrower in an aggregate amount for the Borrower and its Subsidiaries not to exceed $10 million at any time outstanding;
(h) Investments received in Loan Partiesconnection 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;
(i) Swap Agreements permitted by Section 6.06 and Permitted Equity Derivatives;
(j) 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;
(k) to the extent constituting investments, performance guarantees of obligations of the Borrower’s Subsidiaries in the ordinary course of business;
(l) other Investments by the Borrower or any of its Subsidiaries so long as, (iiiA) additional Investments by Subsidiaries no event of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment therefrom and both immediately prior and (B) after giving effect to such Investmentthereto on a pro forma basis, the Borrower Senior Secured 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 is not more than 3.25 to 1.00;
(m) Investments made as a result of the receipt of non-cash consideration from Disposition, of any asset in compliance with Section 6.13, additional 6.05;
(n) Investments by the Loan Parties in whollyJoint Ventures or non-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof for all Investments under this clause (n) not to exceed the sum of (A) exceeding $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)50 million;
(co) Guarantees constituting Indebtedness permitted by Section 6.01; and
(d) payroll, travel and similar advances to officers, directors and employees of the Borrower or any Subsidiary to cover matters that are expected at the time of such advances to be treated as expenses of the Borrower or such Subsidiary for accounting purposes and that are made in the ordinary course of business;
(p) Investments consisting of loans, advances, intercompany balances, or other extensions of credit arising under cost-plus, cost-sharing or other similar agreements, in each case, entered into in ordinary course of business;
(q) Investments consisting of asset’s held in the name of Borrower or any of its Subsidiaries for the benefit of its employees in connection with retirement and equivalent benefits of current or former employees; and
(r) 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 $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes70 million during the term of this Agreement.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Samples: Credit Agreement (Etsy Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger) any capital 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”or material portion thereof), except:
(a) Permitted Investments;
(ib) Investments with respect to any Foreign Subsidiary, direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the government of the country in which such Foreign Subsidiary is organized or 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 aggregate at any time outstanding;
(c) loans, advances or investments existing on the date hereof by the Borrower and its the Subsidiaries to or in their respective Subsidiaries outstanding on subsidiaries;
(d) loans or advances made after the date hereof, (ii) additional Investments Effective Date by the Borrower and its Subsidiaries in Loan Partiesto any Wholly-Owned Subsidiary or by any Wholly-Owned Subsidiary to the Borrower or any other Wholly-Owned Subsidiary; provided that, (iii) additional Investments by Subsidiaries upon request of the Borrower that are not Loan Parties Required Lenders, such loans or advances shall be evidenced by a promissory note in other Subsidiaries that are not Loan Parties; form and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect substance reasonably acceptable to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)Required Lenders;
(ce) Guarantees constituting Indebtedness permitted by Section 6.01;
(f) 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) Permitted Business Acquisitions by any Consolidated Entity so long as (i) if the consideration for such Permitted Business Acquisition consists solely of Capital Stock of the Borrower, (A) the aggregate market value of such Capital Stock paid by the Borrower and the Subsidiaries in respect of such Permitted Business Acquisition does not exceed 50% of Consolidated Net Worth determined as of the end of the most recently ended fiscal quarter and (B) the Leverage Ratio after giving effect to such Permitted Business Acquisition does not exceed and is not projected to exceed 2.25 to 1.00, and (ii) in all other circumstances, unless otherwise approved by the Required Lenders, (A) the aggregate cash and non-cash consideration (including the concurrent repayment or assumption of any Indebtedness) paid by the Borrower and the Subsidiaries in respect of any such Permitted Business Acquisition does not exceed $20,000,000 and (B) the Leverage Ratio after giving effect to such Permitted Business Acquisition does not exceed and is not projected to exceed 1.75 to 1.00;
(h) investments by the Borrower or any Subsidiary existing on the date hereof and set forth in Schedule 6.04;
(i) investments that do not exceed $500,000 in the aggregate at any time outstanding made in connection with a sale of assets permitted by Section 6.07 to the extent of the non-cash consideration received by the Borrower or any Subsidiary; and
(dj) advances investments in addition to officers, directors and employees those permitted by (a) through (i) by the Borrower or any Subsidiary (including investments made to meet minimum capital requirements of foreign jurisdictions) that do not exceed $4,000,000 in the aggregate for the Borrower and all Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Samples: Credit Agreement (Lydall Inc /De/)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly Owned Subsidiary prior to such merger) any capital stock, Capital Stock of 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 purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (all of the foregoingcollectively, “"Investments”"), except:
(a) the Acquisition;
(b) Permitted Investments;
(ic) Investments investments existing on the date hereof and set forth on Schedule 6.5;
(d) intercompany investments in the ordinary course of business made by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding any Subsidiary that, prior to such Investment, is a Subsidiary; provided that, after giving effect to any such investment made on a particular date, the date hereof, (ii) additional aggregate amount of such Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties from the Effective Date through and including such date, net of any repayments of any such Investments, in other or with respect to Subsidiaries that are not Loan Parties; Wholly Owned Subsidiary Guarantors shall not exceed (i) $45,000,000, if the Consolidated Leverage Ratio, determined as of the last day of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available, is greater than or equal to 3.00 to 1.0 or the Interim Term Loans have not been paid in full or (ii) $75,000,000, if the Consolidated Leverage Ratio as so determined is less than 3.00 to 1.0 and the Interim Term Loans have been paid in full;
(ive) so long as no Default has occurred loans and is continuing or would result from such Investment and both immediately prior and after giving effect advances to such Investment, employees of the Borrower is or any Subsidiary in compliance with Section 6.13the ordinary course of business (including for travel, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties entertainment and relocation expenses) in an aggregate amount invested from for the date hereof Borrower or any Subsidiary not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)10,000,000 at any one time outstanding;
(cf) Guarantees constituting Indebtedness permitted by Section 6.016.2; provided that (i) a Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Subsidiary also has Guaranteed the Obligations pursuant to each relevant Collateral 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 Disposition of the relevant Subsidiary or of substantially all of its assets, and (ii) the aggregate principal amount of Indebtedness of Subsidiaries that are not Wholly Owned Subsidiary Guarantors that is Guaranteed by any Loan Party shall be subject to the limitation set forth in paragraph (d) above;
(g) Permitted Acquisitions, provided that, after giving effect to any Permitted Acquisition made on a particular date, the aggregate Consideration expended in connection with all Permitted Acquisitions pursuant to this paragraph (g) from the Effective Date through and including such date shall not exceed (i) $50,000,000 if the Consolidated Leverage Ratio, determined as of the last day of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available, is greater than or equal to 3.50 to 1.0 or the Interim Term Loans have not been paid in full, (ii) $130,000,000 if the Consolidated Leverage Ratio as so determined is less than 3.50 to 1.0 and greater than or equal to 3.00 to 1.0 and the Interim Term Loans have been paid in full or (iii) $175,000,000 if the Consolidated Leverage Ratio as so determined is less than 3.00 to 1.0 and the Interim Term Loans have been paid in full;
(h) Guarantees, not constituting Indebtedness permitted by Section 6.2, by the Borrower and its Subsidiaries of the Contractual Obligations of the Borrower or any Subsidiary Guarantor;
(i) intercompany investments in any Wholly Owned Subsidiary created by the Borrower or any of its Subsidiaries in connection with any corporate restructuring, provided that (A) such newly-created Subsidiary is, or contemporaneously with the consummation of such restructuring becomes, a Wholly Owned Subsidiary Guarantor, (B) all property transferred to such newly-created Subsidiary that constituted Collateral shall continue to constitute Collateral as to which the Collateral Agent has a first priority perfected security interest, subject to Permitted Encumbrances, and (C) contemporaneously with the consummation of such restructuring (i) the Capital Stock and assets of such newly-created Subsidiary are pledged under the relevant Security Documents (except to the extent that any of the foregoing would not otherwise be required pursuant to Section 5.11 to be so pledged on the next succeeding Collateral Date) and (ii) the Borrower takes, and causes the relevant Subsidiary to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in Section 5.12, all at the expense of the Loan Parties; and
(dj) advances Investments that are not permitted by any other paragraph of this Section, so long as, after giving effect to officersany such Investment made on a particular date, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, Consideration expended in connection with all such employees’ exercise Investments from the Effective Date through and including such date shall not exceed (i) $50,000,000 if the Consolidated Leverage Ratio, determined as of their stock options the last day of the most recent period of four consecutive fiscal quarters for which the relevant financial infirmation is available, is greater than or equal to 3.00 to 1.0 or the Interim Term Loans have not been paid in full or (ii) $75,000,000 if the Consolidated Leverage Ratio as so determined is less than 3.00 to 1.0 and payment of related taxes thereonthe Interim Term Loans have been paid in full.
Appears in 1 contract
Samples: Credit Agreement (SPX Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all of the foregoingeach such action, an “InvestmentsInvestment”), except:
(a) Permitted Investmentsinvestments in cash and Cash Equivalents;
(ib) Investments investments in existence 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 by the terms of such Investment or as otherwise permitted by this Section 6.04;
(c) investments by the Borrower and its Subsidiaries in the capital stock of 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) (excluding any amounts relating to the processing of payments on the Borrower’s and its Subsidiaries’ payments platform and any intercompany accounts payable in connection therewith) and amounts described in Section 6.04(l)(iv) or in clause (h) of the definition of “Permitted Acquisition”), as of any date of determination, made by the Borrower or the other Loan Parties in the capital stock of their respective Subsidiaries outstanding on who are not Loan Parties does not at any time exceed an amount equal to the date hereof, greater of (i) $50.0 million and (ii) additional 25% of Consolidated Adjusted EBITDA for the most recently ended Reference Period, on a pro forma basis (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);
(d) loans or advances made by the Borrower or any of its Subsidiaries to the Borrower or any other Subsidiary; provided, that the aggregate amount of loans and advances, excluding any amounts relating to the processing of payments on the Borrower’s and its Subsidiaries’ payments platform and any intercompany accounts payable in connection therewith, together with the aggregate amount of investments described in Section 6.04(c) or Section 6.04(l)(iv) and amounts described in clause (h) of the definition of “Permitted Acquisition”, 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 the greater of (i) $50.0 million and (ii) 25% of Consolidated Adjusted EBITDA for the most recently ended Reference Period, on a pro forma basis;
(e) Guarantees constituting Indebtedness permitted by Section 6.01 and guarantees of ordinary course commercial obligations not constituting Indebtedness;
(i) Permitted Acquisitions and (ii) Investments by of any Person in existence at the time such Person becomes a Subsidiary; provided, that such Investment was not made in connection with or anticipation of such Person becoming a Subsidiary and any modification, replacement, renewal or extension thereof;
(g) loans and advances to employees of the Borrower or any Subsidiaries in the ordinary course of business to finance the purchase of Equity Interests (other than Disqualified Equity Interests) of the Borrower in an aggregate amount for the Borrower and its Subsidiaries not to exceed $5.0 million at any time outstanding;
(h) investments received in Loan Partiesconnection 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;
(i) Swap Agreements permitted by Section 6.06;
(j) 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;
(k) to the extent constituting investments, performance guarantees of obligations of the Borrower’s Subsidiaries in the ordinary course of business;
(l) other Investments by the Borrower or any of its Subsidiaries so long as, (iiii) additional Investments by Subsidiaries no Event of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and therefrom, (ii) after giving effect to such InvestmentInvestment (including the incurrence, assumption or acquisition of any Indebtedness in connection therewith) the Consolidated Total Net Leverage Ratio, calculated on a pro forma basis as if such Investment (including the incurrence, assumption or acquisition of any Indebtedness in connection therewith) had been consummated at the beginning of such period, shall not exceed 3.25 to 1.00 and the Borrower is in shall have delivered to the Administrative Agent reasonably detailed calculations demonstrating compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of this clause (Aii) $17,500,000 plus and (B) the difference between (1) $50,000,000 minus (2iii) the aggregate amount of permitted Restricted Payments all such Investments in any Persons that are not or which do not become Loan Guarantors (together with the aggregate amount of investments, loans or advances described in Sections 6.04(c) and (d) and amounts described in clause (h) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to the greater of (i) $50.0 million and (ii) 25% of Consolidated Adjusted EBITDA for the most recently ended Reference Period, on a pro forma basis;
(m) Investments made as a result of the receipt of non-cash consideration from Disposition, of any asset in compliance with Section 6.07(e)6.05;
(cn) Guarantees constituting Indebtedness permitted by Section 6.01; and
(d) payroll, travel and similar advances to officers, directors and employees of the Borrower or any Subsidiary to cover matters that are expected at the time of such advances to be treated as expenses of the Borrower or such Subsidiary for accounting purposes and that are made in the ordinary course of business;
(o) 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 $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.15.0 million during the term of this Agreement;
(ep) Loans to employees the extent categorized as an investment, contingent chargeback obligations arising from the Borrower or its Subsidiaries acting as “merchant of record” under applicable credit card payment processes, as incurred in the ordinary course of business of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.its Subsidiaries;
Appears in 1 contract
Samples: Credit Agreement (Flywire Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, (i) purchase, hold or acquire (including pursuant to any merger with or consolidation with, any Person that was not a wholly owned Wholly Owned Subsidiary prior to such mergermerger or consolidation) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other similar 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 beneficial interest in, any other Person, or (ii) purchase or otherwise acquire (in one transaction or a series of transactions) any Person or all or substantially all of the assets of any Persons or any assets of any other Person constituting a business unit unit, division, product line or line of business of such Person (all each of the foregoing, “Investments”foregoing transactions described in the foregoing clauses (i) and (ii), an “Investment”) except:
(a) cash and Permitted Investments;
(b) Permitted Acquisitions;
(c) (i) Investments by the Borrower and its Subsidiaries existing on the Effective Date in the capital stock of their respective Subsidiaries outstanding on the date hereofSubsidiaries, (ii) additional Investments by a Subsidiary in the Borrower, (iii) Investments by the Borrower and in any of its Subsidiaries (provided that not more than an aggregate amount of $5,000,000 in Loan Partiesinvestments, (iii) additional Investments loans or advances or capital contributions may be made and remain outstanding, at any time, by Subsidiaries of the Borrower that are not Loan Parties in other to Subsidiaries that which are not Loan Parties; ) and (iv) so long as no Default has occurred and is continuing Investments by any Person existing on the date such Person becomes a Subsidiary or would result from such Investment and both immediately prior and after giving effect to such Investment, consolidates or merges with the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned or any of its Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not pursuant to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of a transaction otherwise permitted Restricted Payments made in compliance with Section 6.07(e)hereunder;
(cd) Guarantees constituting and other Indebtedness permitted by Section 6.01; and;
(e) Investments in existence on the Effective Date and described in Schedule 6.04 and any modification, replacement, renewal or extension thereof that do not increase the aggregate amount thereof;
(f) Investments in the form of Swap Agreements permitted by Section 6.06;
(g) Investments constituting deposits described in clauses (c) and (d) of the definition of “Permitted Encumbrances” or otherwise constituting Liens permitted by Section 6.02;
(h) Investments comprised of notes payable, stock or other securities issued by account debtors to the Borrower or any of its Subsidiaries pursuant to negotiated agreements with respect to settlement of such account debtor’s accounts in the ordinary course of business or Investments otherwise received in settlement of obligations owed by any financially troubled account debtors or other debtors in connection with such Person’s reorganization or in bankruptcy, insolvency or similar proceedings or in connection with foreclosure on or transfer of title with respect to any secured Investment;
(i) extensions of trade credit or the holding of receivables in the ordinary course of business;
(j) the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests of the Borrower or any option, warrant or other right to acquire any such Equity Interests in the Borrower, in each case to the extent the payment therefore is permitted under Section 6.08;
(k) loans and advances to officers, directors and employees (i) for moving, payroll, entertainment, travel and other similar expenses in the ordinary course of business not to exceed $1,000,000 in the aggregate at any time outstanding, and (ii) incurred in connection with tax obligations associated with foreign tax authorities, as previously disclosed by the Borrower and Subsidiaries in an aggregate amount to the Administrative Agent, not to exceed $2,000,000 in the aggregate at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.;
(el) Loans endorsements for collection or deposit and prepaid expenses made in the ordinary course of business;
(m) transactions (to employees the extent constituting Investments) or promissory notes and other non-cash consideration received in connection with dispositions permitted by Section 6.03 and Section 6.04;
(n) Investments constituting the creation of new wholly-owned Subsidiaries so long as any Investment in such new wholly-owned Subsidiary is otherwise permitted under this Section 6.05 and all actions required to be taken with respect to such acquired or newly formed wholly-owned Subsidiary under Section 5.09 shall have been taken;
(o) Guarantees of leases and other contractual obligations of any Subsidiary (to the Borrower extent not constituting Indebtedness) in cumulative the ordinary course of business;
(p) any other investment, loan or advance (other than acquisitions) so long as the aggregate amount of all such investments, loans and advances does not to exceed $8,500,000 5,000,000 at any time, time outstanding;
(q) investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business;
(r) investments held by any Person that becomes a Subsidiary after the date hereof; provided that such investments exist at the time such Person becomes a Subsidiary and are not created in contemplation of or in connection with such employees’ exercise Person becoming a Subsidiary;
(s) any investments received in compromise or resolution of their stock options litigation, arbitration or other disputes; and
(t) investments constituting deposits described in clauses (c) and payment (d) of related taxes thereonthe definition of “Permitted Encumbrances”. For purposes of covenant compliance with this Section 6.05, 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
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(ib) Investments Permitted Acquisitions;
(c) investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereofRestatement Effective Date in the capital stock of its Subsidiaries;
(d) investments, (ii) additional Investments loans or advances made by the Borrower in or to any Subsidiary and its Subsidiaries made by any Subsidiary in Loan Parties, (iii) additional Investments by Subsidiaries of or to the Borrower or any other Subsidiary (provided that are not more than an aggregate amount of $10,000,000 in investments, loans or advances or capital contributions may be made and remain outstanding, at any time, by Loan Parties in other to Subsidiaries that which are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e);
(ce) Guarantees constituting Indebtedness permitted by Section 6.01;
(f) investments acquired by reason of the exercise of customary creditor’s rights upon default or pursuant to the bankruptcy, insolvency or reorganization of an account debtor of the Borrower or any Subsidiary;
(g) investments by the Borrower or any Subsidiary pursuant to any Swap Agreements to the extent permitted under Section 6.05;
(h) investments by the Borrower or any Subsidiary in equity interests of Persons (other than Subsidiaries) engaged in lines of business of the type conducted by the Borrower and its Subsidiaries as of the Restatement Effective Date and businesses reasonably related thereto; provided that no investment shall be made under this clause (h) if, together with all other investments under this clause (h) (calculated as of the date made and without giving effect to any increase or decrease in the value thereof), the aggregate amount of all investments under this clause (h) shall exceed 10% of Consolidated Total Assets (calculated as of the last day of the most recent fiscal year);
(i) investments by UGI PennEast, LLC, a Delaware limited liability company, pursuant to that certain Amended and Restated Limited Liability Company Agreement of PennEast Pipeline Company, LLC, dated as of October 13, 2014, as amended by that certain Amendment Number 1 to Amended and Restated Limited Liability Company Agreement, dated as of November 24, 2014 and as further amended by that certain Amendment Number 2 to Amended and Restated Limited Liability Company Agreement, dated as of July 29, 2015, not in the excess of $250,000,000 during the term of this Agreement;
(j) other investments by the Borrower or any Subsidiary not in excess of 7.50% of Consolidated Total Assets (calculated as of the last day of the most recent fiscal year); and
(dk) advances to officers, directors and employees payment or performance Guarantees of the Borrower and Subsidiaries Affiliates not constituting Indebtedness in an aggregate amount not to exceed $2,000,000 20,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and nor will not it permit any of its Subsidiaries Subsidiary to, purchase, hold purchase or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger) any capital 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 purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit unit, (all of the foregoing, each an “InvestmentsInvestment”), except:
(ai) Permitted Investments;
(iii) Investments existing on the date hereof and set forth on Schedule 6.04 or made pursuant to binding commitments existing on the date hereof and set forth on Schedule 6.04;
(iii) Investments by the Borrower and its the Subsidiaries in their respective Subsidiaries the Borrower or any Subsidiary;
(iv) Guarantees of Indebtedness of the Borrower or any Subsidiary that are permitted by Section 6.01;
(v) loans or advances to employees, officers and directors of the Borrower or any Subsidiary made in the ordinary course of business of the Borrower or any Subsidiary not exceeding $5,000,000 in the aggregate outstanding on at any time (determined without regard to any write-downs or write-offs of such loans or advances), provided that no such loans or advances to any single employee, officer or director shall exceed $2,000,000 in the date hereofaggregate outstanding at any time (determined without regard to any write-downs or write-offs of such loans or advances);
(vi) payroll, travel 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 Subsidiary for accounting purposes and that are made in the ordinary course of business;
(iivii) additional 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;
(viii) Investments in the form of Swap Agreements for non-speculative purposes;
(ix) Investments resulting from pledges or deposits described in clause (c) or (d) of the definition of the term “Permitted Encumbrance”;
(x) receivables or other trade payables owing to the Borrower or a Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms, provided that such trade terms may include such concessionary trade terms as the Borrower or any Subsidiary deems reasonable under the circumstances;
(xi) Investments in the Depository Trust Clearing Corporation or any other entity that is regulated as a clearing corporation to the extent required by applicable law;
(xii) asset purchases (including purchases of inventory, supplies and materials) and the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business; and
(xiii) Guarantees by the Borrower and its Subsidiaries in Loan Parties, or any Subsidiary of leases (iiiother than capitalized leases) additional Investments by Subsidiaries or other obligations of the Borrower or any Subsidiary that are do not Loan Parties constitute Indebtedness in other Subsidiaries that are not Loan Parties; and the ordinary course of business;
(ivxiv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investmentcontinuing, other Investments otherwise restricted by this Section 6.04(a) so long as on a Pro Forma Basis, the Borrower is would be in compliance with the covenants set forth in Section 6.136.08 and Section 6.09 as of the most recent test date for which financial statements have been delivered pursuant to paragraph (a) or (b) of Section 5.01. For purposes of covenant compliance, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made any Investment shall be the amount actually invested without adjustment for subsequent increases in compliance with Section 6.07(e);
(c) Guarantees constituting Indebtedness permitted by Section 6.01; and
(d) advances to officers, directors and employees the value of the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposessuch Investment.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital 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 assets of any other Person constituting a business unit (all of the foregoing, “Investments”)unit, except:
(a) Permitted Investments;
(ib) Investments investments by the Borrower and its Subsidiaries in their respective Subsidiaries outstanding existing on the date hereof, (ii) additional Investments by hereof in the Borrower and capital stock of its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)Subsidiaries;
(c) loans or advances made by the Borrower to any Subsidiary Guarantor and made by any Subsidiary to the Borrower or any other Subsidiary Guarantor;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) Permitted Acquisitions provided the Total Consideration for all such Acquisitions (other than consideration financed or paid with newly issued equity) does not exceed $500,000;
(f) the extension of commercial trade credit in connection with the sale of Inventory in the ordinary course of its business;
(g) loans and advances to the Borrower’s employees on an arm’s-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 $200,000 to any employee and up to a maximum of $500,000 in the aggregate at any one time outstanding;
(h) advance payments of production costs and developer’s fees to developers of games marketed by the Borrower in the ordinary course of business consistent with past practice to Persons that are not Affiliates of the Borrower; and
(di) advances to officers, directors and employees the acquisition by Borrower of the Borrower Hot Pixel game and Subsidiaries related technology from Parent for an amount in an aggregate amount stock not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes5,000,000.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Samples: Credit Agreement (Atari Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, purchasePurchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Capital Stock 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 all or a substantial part of the assets of any other Person constituting a business unit (or all or substantially all of the assets of any Person comprising a division or business unit of such Person (each of the foregoing, an “Investment” and collectively, “Investments”), except:
(a) Permitted Investments;
(b) Investments existing on the Amendment No. 1 Effective Date (the “Existing Investments”), and any Investments received in connection with any recapitalization, merger, dividend or other similar transaction with respect to any Existing Investment;
(c) Investments (i) by the Borrower, or any Material Subsidiary in (A) PMI Insurance or any of its subsidiaries and, following the Additional Collateral Delivery Date, each of the Additional Pledged Entities, and (B) any of the Borrower’s other Subsidiaries (other than FGIC Company, Ram Re Company or PMI Guaranty Co.) in an aggregate amount not to exceed, without duplication (x) $5,000,000 in any fiscal year prior to the Additional Collateral Delivery Date and (y) $10,000,000 over the remaining term of this Agreement on and after the Additional Collateral Delivery Date and (ii) by any Material Subsidiary in the Borrower;
(d) Investments by received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and other disputes with, customers and suppliers, in each case in the ordinary course of business;
(e) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business, in each case in the ordinary course of business;
(f) Investments and reinvestments in portfolio securities in the ordinary course of business;
(g) sales or other transfers of portfolio assets among the Borrower and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, ordinary course of business;
(iih) additional Investments consisting of non-cash consideration received in connection with an Asset Disposition permitted under Section 7.03;
(i) other Investments by the Borrower and or any of its Material Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties otherwise permitted herein in an aggregate amount invested from for the date hereof Borrower and its Material Subsidiaries not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) 5,000,000 in the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e)on any date;
(cj) Investments under Swap Contracts permitted pursuant to Section 7.09;
(k) receivables owing to the Borrower or any of its Material Subsidiaries in connection with deferred premium obligations or endorsements for collection or deposit, in each case created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms;
(l) Investments consisting of non-cash consideration received in connection with an Asset Disposition permitted under Section 7.03;
(m) Investments consisting of, or made pursuant to, capital support or other similar keep-well agreements, or Guarantees constituting Indebtedness permitted thereof, Guarantees by Section 6.01the Borrower or any Material Subsidiary that constitute insurance contracts, or Guarantees of insurance products written by, or the performance of, any Insurance Subsidiary of the Borrower, in each case in the ordinary course of business consistent with business practices in effect on the Amendment No. 1 Effective Date of the Borrower and its Material Subsidiaries taken as a whole;
(n) Investments by a Material Insurance Subsidiary in all cases of the types and in the amounts (i) that constitute “Admitted Assets” (or the substantive equivalent thereof under the laws of the relevant jurisdiction) as determined by such Material Insurance Subsidiary’s Primary Regulator and (ii) in the case of jurisdictions outside the United States, assets that are permissible investments for such Material Insurance Subsidiary pursuant to the regulatory regime administered by the Primary Regulator; and
(do) advances to officers, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposesInvestments constituting Permitted Acquisitions.
(e) Loans to employees of the Borrower in cumulative aggregate amount not to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereon.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower 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 with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, 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 assets of any other Person constituting a business unit (all each of the foregoing, an “InvestmentsInvestment”), exceptexcept for:
(a) Permitted Investments;
(ib) The Closing Date Acquisition;
(c) Investments existing on the Closing Date, and set forth on Schedule 6.4, to the extent such investments would not be permitted under any other clause of this Section;
(d) 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;
(e) Investments by a Borrower in such Borrower’s Subsidiaries, provided, however, that the Borrower aggregate amount of Investments in Foreign Subsidiaries, when combined with the amount of Indebtedness due from Foreign Subsidiaries set forth in Section 6.1(e), may not at any time exceed $125,000,000 per annum, and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Parties, (iii) additional Investments by Subsidiaries further provided that no Default or Event of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is and further provided that any Investment in compliance with Section 6.13, additional Investments by the Loan Parties in Domestic Subsidiaries which are not wholly-owned Subsidiaries that and which are not Loan Parties Borrowers hereunder shall not exceed $25,000,000 for any Subsidiary and $100,000,000 in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments made in compliance with Section 6.07(e);
(c) Guarantees constituting Indebtedness permitted by Section 6.01aggregate; and
(df) loans or advances to officersemployees for the purpose of travel, directors entertainment or relocation in the ordinary course of business and employees of consistent with past practices, not exceeding $1,000,000 in the Borrower and Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding; provided, for travel, entertainment, relocation and analogous ordinary business purposes.
(e) Loans that no such advances to employees of the Borrower in cumulative aggregate amount not to any single employee shall exceed $8,500,000 at any time, 250,000 in connection with such employees’ exercise of their stock options and payment of related taxes thereonthe aggregate.
Appears in 1 contract
Samples: Term Loan Agreement (GameStop Corp.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold purchase or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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 Indebtedness of any other interest in, any other Person, Person or purchase or otherwise acquire (in one transaction or a series of transactions) 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 property and assets or business of another Person (all of the foregoing, foregoing being collectively called “Investments”), except:
(a) Permitted Investments and Permitted Foreign Investments;
(ib) Investments existing on the Effective Date and set forth on Schedule 6.04;
(c) Investments existing on the Effective Date in Restricted Subsidiaries;
(d) Investments in Persons that, immediately prior to such Investments, are Loan Parties;
(e) Investments by any Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary;
(f) Investments held by any Person acquired in any Permitted Acquisition at the time of such Permitted Acquisition (and not acquired in contemplation of the Permitted Acquisition);
(g) Investments constituting an acquisition of the Equity Interests in a Person that becomes a Restricted Subsidiary or all or substantially all of the assets (or all or substantially all of the assets constituting a business unit, division, product line or line of business) of any Person; provided that (i) no Event of Default shall have occurred and be continuing at the time of entry into the related acquisition agreement, (ii) the Borrower and its Restricted Subsidiaries shall, upon giving effect to such acquisition, be in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Borrower and its Subsidiaries in Loan Partiescompliance with Section 6.03(b), (iii) additional Investments the acquired company and its subsidiaries (other than any Unrestricted Subsidiary) shall become Guarantors and pledge their collateral to the Collateral Agent to the extent required by Subsidiaries of the Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties; Section 5.11, and (iv) so long as no Default has occurred and is continuing or would result from such Investment and both immediately prior and after giving effect to such Investment, the Borrower is in compliance with Section 6.13, additional Investments by the Loan Parties in wholly-owned Subsidiaries that are not Loan Parties in an aggregate amount invested from the date hereof not to exceed the sum of (A) $17,500,000 plus (B) the difference between (1) $50,000,000 minus (2) the aggregate amount of permitted Restricted Payments all acquisition consideration paid by Loan Parties in connection with Investments and acquisitions made in compliance with reliance on this clause (g) attributable to the acquisition of acquired entities that do not become Guarantors shall not exceed at the time any such Investment is made the greater of $100,000,000 and 20% of Consolidated EBITDA for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.07(e5.01 after giving effect to the making of such Investment on a Pro Forma Basis (any acquisition under this Section 6.04(g), a “Permitted Acquisition”);
(ch) Guarantees constituting Indebtedness permitted by Section 6.01; andprovided that a Loan Party shall not Guarantee any Indebtedness of a Restricted Subsidiary that is not a Loan Party pursuant to this paragraph (h);
(di) 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;
(j) accounts receivable and extensions of trade credit arising in the ordinary course of business;
(k) Investments held by any Restricted Subsidiary at the time it becomes a Subsidiary in a transaction permitted by this Section 6.04;
(l) advances to officers, directors officers and employees of the Borrower and any Restricted Subsidiary for travel arising in the ordinary course of business;
(m) loans to officers and employees of the Borrower or any Restricted Subsidiary, not to exceed $1,000,000 in the aggregate at any one time outstanding;
(n) promissory notes and other non-cash consideration received by the Borrower and its Restricted Subsidiaries in connection with any Disposition permitted hereunder;
(o) advances in the form of prepayments of expenses, so long as such expenses were incurred in the ordinary course of business and are paid in accordance with customary trade terms of the Borrower or any of its Restricted Subsidiaries;
(p) Guarantees by the Borrower or any of its Restricted Subsidiaries of obligations of any Restricted Subsidiary or the Borrower incurred in the ordinary course of business and not constituting Indebtedness;
(q) Investments consisting of Indebtedness, Liens, fundamental changes, Dispositions and Restricted Payments permitted (other than by reference to this Section 6.04(q)) under Sections 6.01, 6.02, 6.03, 6.05 and 6.08, respectively;
(r) other Investments so long as on the date such Investment is made the Total Net Leverage Ratio as of the last day of the most recent Test Period for which financial statements have been delivered pursuant to Section 5.01 or Section 4.01(k) at the time such Investment is made on a Pro Forma Basis is no greater than 1.753.00 to 1.00;
(s) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(t) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of the Borrower or with Net Proceeds of any issuance of Qualified Equity Interests of the Borrower;
(u) (i) intercompany advances arising from their cash management, tax and accounting operations and (ii) intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business;
(v) Investments represented by Swap Agreements permitted under Section 6.01;
(w) other Investments in an aggregate amount not to exceed $2,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes.the Available Amount;
(ex) Loans other Investments; provided that at the time any such Investment is made the aggregate amount of Investments made in reliance on this clause (x) shall not to employees exceed the greater of $75,000,000 and 15% of Consolidated EBITDA for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 as of such time after giving effect to the making of such Investment on a Pro Forma Basis; and
(y) Investments made to effect the Mergers (if applicable). For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, less any return of capital, without adjustment for subsequent increases or decreases in the value of such Investment. For the avoidance of doubt, the acquisition by the Borrower and its Restricted Subsidiaries of Intellectual Property in the ordinary course of their respective businesses shall not be considered an Investment. To the extent an Investment is permitted to be made by a Loan Party directly in any Restricted Subsidiary or any other Person who is not a Loan Party (each such Restricted Subsidiary or other Person, a “Target Person”) under any provision of this Section 6.04, such Investment may be made by advance, contribution or distribution by a Loan Party to a Restricted Subsidiary (and further advanced, contributed or distributed to another Restricted Subsidiary) for purposes of making the relevant Investment in (or effecting an acquisition of) the Target Person without constituting an Investment for purposes of Section 6.04 (it being understood that such Investment or Acquisition must satisfy the requirements of, and shall count towards any thresholds in, a provision of this Section 6.04 as if made by the applicable Loan Party directly in the Target Person). For purposes of determining compliance with this Section 6.04, if any Investment (or a portion thereof) would be permitted pursuant to one or more provisions described above, the Borrower may divide and classify such Investment (or a portion thereof) in any manner that complies with this covenant. Notwithstanding anything in this Section 6.04 to the contrary, the Borrower will not, and will not permit any of its Restricted Subsidiaries to make any Investments pursuant to which Intellectual Property assets or other strategic assets, in each case, that are material to the business of the Borrower in cumulative aggregate amount not and its Restricted Subsidiaries, taken as a whole, is transferred to exceed $8,500,000 at any time, in connection with such employees’ exercise of their stock options and payment of related taxes thereonUnrestricted Subsidiary.
Appears in 1 contract
