Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except: (a) the Acquisition; (b) Permitted Investments; (c) investments existing on the date hereof and set forth on Schedule 6.04; (d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition); (e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above; (f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above; (g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business; (h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000; (i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90 (j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Marketing Services Inc), Credit Agreement (American Media Operations Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Company will not, and nor will not it permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not an Obligor and a wholly owned Restricted Wholly-Owned Subsidiary prior to such merger) any Equity Interests in or 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 unitunit (whether through purchase of assets, merger or otherwise), except:
(ai) Permitted Investments, subject to control agreements in favor of the AcquisitionSubordinated Collateral Agent for the benefit of the holders of the Subordinated Notes or otherwise subject to a perfected security interest in favor of the Subordinated Collateral Agent for the benefit of the holders of the Subordinated Notes unless prohibited under the Securitization Facility;
(bii) Permitted Investmentsinvestments in existence on the First Amendment Effective Date and described in Schedule 6C;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(diii) investments by the Borrower Company and its Restricted the Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED , provided that (ia) any such Equity Interests in a Subsidiary held by a Loan Party an Obligor shall be pledged pursuant to the Pledge Security Agreement or the Subsidiary Security Agreement (subject to the limitations applicable to the pledge common stock of Equity Interests a foreign Subsidiary referred to in Foreign Subsidiaries set forth in Section 5.12paragraph 5M(ii), ) and (iib) the aggregate amount of investments by Loan Parties in, Obligors in Subsidiaries that are not Obligors and are not Securitization SPEs (together with outstanding intercompany loans permitted under clause (b) to the proviso to paragraph 6C(iv) and advances by Loan Parties to, and outstanding Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on permitted under the Effective Dateproviso to paragraph 6C(v)) shall not exceed $25,000,000 2,500,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale each case determined without regard to any write-downs or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);
(eiv) loans or advances made by the Borrower Company to any Subsidiary and made by any Restricted Subsidiary to the Borrower Company or any other Subsidiary; PROVIDED , provided that (a) any such loans and advances by an Obligor shall not be evidenced by a promissory note and (b) the amount of such loans and advances made by Loan Parties Obligors to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject not Obligors and are not Securitization SPEs (together with outstanding investments permitted under clause (b) to the limitations set forth proviso to paragraph 6C(iii) and outstanding Guarantees permitted under the proviso to paragraph 6C(v)) shall not exceed $2,500,000 at any time outstanding (in clause (d) aboveeach case determined without regard to any write-downs or write-offs);
(fv) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED paragraph 6B, provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Obligors that is Guaranteed by any Loan Party Obligor shall be subject (together with outstanding investments permitted under clause (b) to the limitations set forth in proviso to paragraph 6C(iii) and outstanding intercompany loans permitted under clause (db) aboveto the proviso to paragraph 6C(iv)) shall not exceed $2,500,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(gvi) loans or advances made by an Obligor to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $100,000 to any employee and up to a maximum of $1,000,000 in the aggregate at any one time outstanding;
(vii) subject to Sections 4.2(a) and 4.4 of the Security Agreement and Sections 5.1 and 5.2 of the Subsidiary Security Agreement, notes payable, or stock or other securities issued by Account Debtors to an Obligor pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in the ordinary course of business, consistent with past practices;
(viii) investments in the form of Swap Agreements permitted by paragraph 6Q;
(ix) investments of any Person existing at the time such Person becomes a Subsidiary of the Company or consolidates or merges with the Company or any of 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;
(x) investments received in connection with the bankruptcy or reorganization of, or settlement dispositions of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;assets permitted by paragraph 6E; and
(hxi) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events investments constituting deposits described in clause clauses (aiii) and (iv) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such “Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstandingLiens.”
Appears in 2 contracts
Samples: Credit Agreement (Bluestem Brands, Inc.), Credit Agreement (Bluestem Brands, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Subsidiary prior to such mergermerger or consolidation) any 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, except:
(a) the AcquisitionPermitted Investments;
(b) (i) Permitted InvestmentsAcquisitions and (ii) solely in the case of Foreign Subsidiaries, Permitted Foreign Acquisitions;
(c) cash and cash equivalents;
(i) investments existing on the date hereof in the Borrower and the Subsidiaries and (ii) other investments existing on the date hereof and set forth on Schedule 6.04;
(de) investments by Holdings in the Borrower and by the Borrower and its Restricted the Subsidiaries in Equity Interests in of their respective Subsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to extent required by the limitations applicable to definition of the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), term “Collateral and Guarantee Requirement” and (ii) the aggregate amount of such investments made by Loan Parties in, and loans and advances by in Subsidiaries that are not Loan Parties to, (together with outstanding intercompany loans permitted under subclause (ii) of the proviso to clause (f) of this Section and outstanding Guarantees by Loan Parties permitted under the proviso to clause (g) of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Datethis Section) shall not exceed the greater of (A) $25,000,000 100,000,000 and (B) 10.0% of the consolidated total assets of the Borrower as of the fiscal year most recently ended prior to the making of such investments at any time outstanding (it being understood thatin each case determined without regard to any write-downs or write-offs), provided that if any such investment under this subclause (ii) is made for purposes the purpose of determining outstanding investments in Unrestricted Subsidiariesmaking an investment, loan or advance permitted under clause (u) of this Section, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and available under this clause (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Datee) shall not exceed 5% be reduced by the amount of Total Assets at any time outstanding such investment, loan or advance which reduces the basket under clause (it being understood that, for purposes u) of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)this Section;
(ef) loans or advances made by Holdings or the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED 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 Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties (together with investments permitted under subclause (ii) of the proviso to clause (e) of this Section and outstanding Guarantees permitted under the proviso to clause (g) of this Section) shall be subject not exceed the greater of (A) $100,000,000 and (B) 10.0% of the consolidated total assets of the Borrower as of the fiscal year most recently ended prior to the limitations set forth making of such loans or advances at any time outstanding (in each case determined without regard to any write-downs or write-offs), provided that if any such loan or advance under this subclause (ii) is made for the purpose of making an investment, loan or advance permitted under clause (du) aboveof this Section, the amount available under this clause (f) shall not be reduced by the amount of any such investment, loan or advance which reduces the basket under clause (u) of this Section;
(fg) Guarantees constituting of Indebtedness that is permitted by under Section 6.016.01 and other obligations, in each case of Holdings, the Borrower or any Subsidiary; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee total 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness and the aggregate amount of Unrestricted Subsidiariesother obligations, or in each case of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with investments permitted under subclause (ii) of the proviso to clause (e) of this Section and intercompany loans permitted under subclause (ii) to the limitations set forth in proviso to clause (df) aboveof this Section) shall not exceed the greater of (A) $100,000,000 and (B) 10.0% of the consolidated total assets of the Borrower as of the fiscal year most recently ended prior to the making of such Guarantees at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(gh) loans or advances to directors, officers, consultants or employees of Holdings, the Borrower or any Subsidiary made in the ordinary course of business of Holdings, the Borrower or such Subsidiary, as applicable, not exceeding $2,000,000 in the aggregate outstanding at any time (determined without regard to any write-downs or write-offs of such loans or advances);
(i) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses of Holdings, the Borrower or any Subsidiary for accounting purposes and that are made in the ordinary course of business;
(j) 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;
(hk) Permitted Acquisitions; PROVIDED that investments in the sum form of all consideration Hedging Agreements permitted by Section 6.07;
(other than common Equity Interests of Holdingsl) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount investments of any Indebtedness issued Person existing at the time such Person becomes a Subsidiary or consolidates or merges with the Borrower or any Subsidiary so long as deferred purchase price and the fair market value such investments were not made in contemplation of any other non-cash consideration but excluding the amount such Person becoming a Subsidiary or of Net Proceeds such consolidation or merger;
(m) investments resulting from Prepayment Events pledges or deposits described in clause (ac) or (d) of the definition of the term Prepayment Event “Permitted Encumbrance”;
(n) 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 6.05;
(o) investments that are appliedresult solely from the receipt by Holdings, the Borrower or any Subsidiary from any of its subsidiaries of a dividend or other Restricted Payment in the form of Equity Interests, evidences of Indebtedness or other securities (but not any additions thereto made after the date of the receipt thereof);
(p) 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;
(q) mergers and consolidations permitted under Section 2.11(c6.03 that do not involve any Person other than Holdings, the Borrower and Subsidiaries that are wholly owned Subsidiaries;
(r) loans and advances to Holdings (and by Holdings to its parent) with the Net Proceeds of the sale of all or a portion of Affinia South America, less any amounts declared and paid as a Restricted Payment pursuant to Section 6.08(a)(iii), provided that (x) such loan or advance is made on or prior to make such Permitted Acquisitionsthe 18-month anniversary of the Effective Date and (y) 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 exceedmaking of such loan or advance, on a cumulative basis during and after giving effect to such sale, Restricted Payment and loan or advance, the term of this Agreement, $50,000,000Total Leverage Ratio is equal to or less than 5.00 to 1.00;
(is) Guarantees by Holdings, the Borrower or any investments Subsidiary of leases (other than Capitalized Leases) or of other obligations that do not constitute Indebtedness, in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90each case entered into in the ordinary course of business;
(jt) investments, loans and advances by Holdings, the Borrower or any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person Subsidiary in an aggregate amount, as valued at cost at the time each such investment, loan or advance is made and including all related commitments for future investments, loans or advances (and the principal amount of any Indebtedness that is assumed or otherwise incurred in connection with such investment, loan or advance), not to exceed exceeding $25,000,000 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), less any amounts declared and paid as a Restricted Payment pursuant to Section 6.08(a)(xii)(A) or payments of Indebtedness pursuant to Section 6.08(b)(iv); and
(u) other investments, loans and advances by the Borrower or any Subsidiary (and loans and advances by Holdings) in an aggregate amount, as valued at cost at the time outstandingeach such investment, loan or advance is made and including all related commitments for future investments, loans or advances (and the principal amount of any Indebtedness that is assumed or otherwise incurred in connection with such investment, loan or advance), not exceeding the sum of (i) the greater of (A) $50,000,000 and (B) 5.0% of the consolidated total assets of the Borrower as of the fiscal year most recently ended prior to the making of such investments, loans or advances plus (ii) the Available Amount at such time 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 2 contracts
Samples: Credit Agreement (Affinia Group Intermediate Holdings Inc.), Credit Agreement (Affinia Group Intermediate Holdings Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiaries Subsidiary to, form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unitunit (whether through purchase of assets, merger or otherwise), except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investmentsinvestments and loans in existence on the date hereof and described in Schedule 6.04;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower and its Restricted Subsidiaries Loan Parties in the Equity Interests in of their respective Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge applicable Security Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed referred to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionSection 5.14);
(ed) loans or advances made by the Borrower any Loan Party to any Subsidiary and made by any Restricted Subsidiary to the Borrower a Loan Party or any other Subsidiary; PROVIDED , provided that the amount of any such loans and advances made by a Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, Party shall be subject evidenced by a promissory note pledged pursuant to the limitations set forth in clause (d) aboveapplicable Security Agreement;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that ;
(if) loans or advances made by a Restricted Subsidiary shall not Guarantee Loan Party to its employees on an arms-length basis in the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreementordinary course of business consistent with past practices for travel and entertainment expenses, (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 relocation costs and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply similar purposes up to a sale maximum of such Equity Interests by the Borrower, and (ii) $100,000 in the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by at any Loan Party shall be subject to the limitations set forth in clause (d) aboveone time outstanding;
(g) notes payable, or stock or other securities issued by Account Debtors to a Loan Party pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in the ordinary course of business, consistent with past practices;
(h) investments in the form of Swap Agreements permitted by Section 6.07;
(i) investments of any Person existing at the time such Person becomes a Subsidiary of a Borrower or consolidates or merges with a Borrower or any of the Subsidiaries (including in connection with a permitted acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(j) investments received in connection with the bankruptcy or reorganization of, or settlement disposition of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of businessassets permitted by Section 6.05;
(hk) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events investments constituting deposits described in clause clauses (ac) and (d) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such “Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000Encumbrances”;
(il) any investments extensions of credit or credit accommodations to customers or vendors made by a Borrower or a Subsidiary in or loans to any other Person received the ordinary course of its business as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90conducted on the Effective Date;
(jm) any other investments ininvestments, loans, advances or loans and warranties and recourse obligations up to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceeding $250,000 outstanding at any time;
(n) investments of Escalade Insurance, that (i) are investments of the same type and character as those investments of Escalade Insurance that exist on the Effective Date, (ii) comply with the investment policies of Escalade Insurance; and (iii) comply with all laws regulating the investments of Escalade Insurance; provided, however, as of the Effective Date, all investments of Escalade Insurance in excess of $500,000 shall be at least NAIC Class 1 and Class 2 investments;
(o) other investments of Subsidiaries, provided that investments permitted under this Section 6.04(o) shall not exceed $25,000,000 at any time outstanding500,000;
(p) Permitted Acquisitions;
(q) purchases of Equity Interests of a Borrower to the extent permitted by Section 6.08 of this Agreement; and
(r) the Wedcor Guaranty.
Appears in 2 contracts
Samples: Credit Agreement (Escalade Inc), Credit Agreement (Escalade Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly Loan Party and a wholly-owned Restricted Subsidiary prior to such merger) any evidences of Indebtedness or 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 unitunit (whether through purchase of assets, merger or otherwise) or enter into any other Acquisition (each of the foregoing, an “Investment”), except:
(a) the AcquisitionInvestments in cash and Cash Equivalents;
(b) Permitted InvestmentsInvestments in existence on the date hereof and described in Schedule 6.04;
(c) investments existing Investments in existence on the date hereof Effective Date by the Company and set forth on Schedule 6.04its Restricted Subsidiaries in their respective Subsidiaries;
(d) investments Investments by the Borrower Company and its the Restricted Subsidiaries in Equity Interests in their respective SubsidiariesSubsidiaries made after the Effective Date; PROVIDED provided that (i) the aggregate amount of such Investments by the Loan Parties in Subsidiaries that are not Loan Parties shall not exceed $20,000,000 at any time outstanding (determined without regard to any write-downs or write-offs) and (ii) any such Equity Interests in a Subsidiary held Investments that are loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Security Agreement (subject to the limitations applicable extent required to be so pledged by the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)Security Agreement;
(e) loans or advances made by the Borrower to any Subsidiary and made by any a Loan Party or a Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiariesits employees, officers, or to Restricted Subsidiaries that are Foreign Subsidiariesdirectors on an arm’s-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, shall be subject to the limitations set forth in clause (d) aboverelocation costs and similar purposes;
(f) Guarantees constituting Indebtedness permitted accounts receivable, notes payable, or stock or other securities issued by Section 6.01; PROVIDED that (i) Account Debtors to a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations Loan Party pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts obligations in the Guarantee Agreementordinary course of business, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable consistent with past practices, and Investments received in satisfaction or partial satisfaction thereof from financially troubled Account Debtors 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 the sale extent reasonably necessary in order to prevent or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale limit loss or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or reorganization ofof customers or suppliers, or settlement of delinquent accounts and disputes with, customers and with suppliers, in each case in the ordinary course of business;
(g) Investments in the form of Swap Agreements permitted by Section 6.07;
(h) Permitted Acquisitions; PROVIDED that Investments of any Person existing at the sum time such Person becomes a Restricted Subsidiary of all consideration a Borrower or consolidates or merges with a Borrower or any of the Restricted Subsidiaries (other than common Equity Interests of Holdings) paid or otherwise delivered including in connection with a Permitted Acquisitions Acquisition) so long as such investments were not made in contemplation of such Person becoming a Restricted Subsidiary or of such merger;
(including the principal amount i) Investments made as a result of any Indebtedness issued as deferred purchase price and the fair market value receipt of any other non-cash consideration but excluding the amount from a sale, transfer or other disposition of Net Proceeds from Prepayment Events assets permitted under Section 6.05;
(j) Investments constituting deposits described in clause clauses (ac) and (d) of the definition of the term Prepayment Event that “Permitted Encumbrances”;
(k) Permitted Acquisitions;
(l) Investments (excluding Acquisitions but including Investments in Subsidiaries) not otherwise permitted by this Section 6.04 so long as the Payment Conditions are appliedsatisfied before and immediately after giving effect to each such Investment and so long as no such Investment requires the incurrence of any Indebtedness, contingent obligation (including any capital call) or other liability not otherwise permitted under this Agreement by any Loan Party or otherwise enables a creditor to have recourse to any Loan Party not otherwise permitted under this Agreement;
(m) deposits, prepayments, advances and other credits to suppliers, vendors, customers, lessors and landlords or in connection with marketing promotions, in accordance with Section 2.11(c)each instance, to make such Permitted Acquisitionsmade in the ordinary course of business;
(n) plus Investments the aggregate principal amount sole payment for which is common stock of all Indebtedness otherwise incurred the Company and which do not constitute Indebtedness;
(o) any earn-out or assumed in connection withcustomary indemnity, purchase price adjustment, or resulting from, similar obligation payable to the Company or any of its Restricted Subsidiaries pursuant to a Permitted Acquisitions Acquisition or a disposition permitted under Section 6.05;
(p) so long as no Default or Event of Default has occurred and is continuing before or after giving effect to such Investments and so long as no such Investment requires the incurrence of any Indebtedness or contingent obligation (including Indebtedness of any acquired Persons outstanding at the time of the applicable Permitted Acquisitioncapital call) shall or other liability by any Loan Party or otherwise enables a creditor to have recourse to any Loan Party, in each case not exceed, on a cumulative basis during the term otherwise permitted to exist under another Section of this Agreement, $50,000,000;
other Investments (iexcluding Acquisitions) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 15,000,000 at any time outstanding;
(q) Investments (excluding Acquisitions) made pursuant to the Company’s Investment Policy and otherwise consistent with the other provisions of this Agreement; and
(r) Restricted Payments permitted by Section 6.08. For the purposes of this Section 6.04, any unreimbursed payment by the Company or any Restricted Subsidiary for goods or services delivered to any Restricted Subsidiary shall be deemed to be an Investment in such Restricted Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Urban Outfitters Inc), Credit Agreement (Urban Outfitters Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Subsidiary prior to such mergermerger or consolidation) any Equity Interests in or 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsAcquisitions;
(c) investments by the Borrower and its Subsidiaries existing on the date hereof in the capital stock of its Subsidiaries;
(d) investments existing on the date hereof and set forth which are listed on Schedule 6.04;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)6.04 hereto;
(e) investments, loans or advances made by the Borrower in or to any Subsidiary Subsidiary, or any Guarantee of Indebtedness of such Subsidiary, and made by any Restricted Subsidiary in or to the Borrower or any other Subsidiary, including a Guarantee by such Subsidiary; PROVIDED provided that the not more than an aggregate amount of $25,000,000 in investments, loans, advances, Guarantees or capital contributions may be made and remain outstanding, at any time, by Loan Parties to or in respect of Subsidiaries which are not Loan Parties; provided, further, that investments in Xxxxx Energy shall only be made by the Borrower, and such investments shall only take the form of loans and advances made by Loan Parties the Borrower to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) aboveXxxxx Energy;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(g) investments received (other than loans, financing leases, advances or similar financing arrangements) in water related assets provided by the Borrower or any Subsidiary thereof for customers in connection with which the bankruptcy applicable customer has entered into a contract with the Borrower or reorganization ofsuch Subsidiary to purchase water or water related services from the Borrower or such Subsidiary at a future date; provided, that the aggregate amount of all investments under this clause (g) and the immediately succeeding clause (h) shall not exceed (x) $20,000,000 at any time in respect of any single Person and its Affiliates, and (y) $60,000,000 at any time in respect of all Persons and their Affiliates, taken in the aggregate;
(h) investments in the form of a loan, financing lease, advance or settlement similar financing arrangement to an unaffiliated third party to finance the purchase of delinquent real property, personal property, services or equipment from the Borrower or any Subsidiary; provided, if the aggregate principal, stated or face amount of the applicable loan, financing lease, advance or similar financing arrangement exceeds $1,000,000, the Borrower or the applicable Subsidiary shall be required to retain a first-priority Lien upon any property or equipment subject to such transaction; provided, further, that the aggregate amount of all investments under this clause (h) and the immediately preceding clause (g) shall not exceed (x) $20,000,000 at any time in respect of any single Person and its Affiliates, and (y) $60,000,000 at any time in respect of all Persons and their Affiliates, taken in the aggregate;
(i) investments constituting accounts arising in the ordinary course of business and disputes with, customers payable in accordance with the Borrower’s or the applicable Subsidiary’s customary trade terms and suppliers, investments by the Borrower or any of its Subsidiaries in each case satisfaction or partial satisfaction thereof from financially troubled account debtors to prevent or limit financial loss;
(j) loans or advances to employees or directors of the Borrower and its Subsidiaries so long as the aggregate principal amount thereof does not exceed $750,000 at any time;
(k) endorsements for collection or deposit in the ordinary course of business;
(hl) Permitted AcquisitionsSwap Agreements permitted under Section 6.05;
(m) Joint ventures with other Persons for the purpose of bidding on and performing construction contracts; PROVIDED that the sum of all consideration and
(n) any other investment, loan or advance (other than common Equity Interests of Holdingsacquisitions) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued so long as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed in connection withsuch investments, or resulting from, Permitted Acquisitions (including Indebtedness loans and advances does not exceed 25% of any acquired Persons outstanding at the time of the applicable Permitted Acquisition) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 Tangible Net Worth at any time outstanding(with Tangible Net Worth at any time being determined based on the Borrower’s most recently delivered financials and corresponding compliance certificate under Section 5.01).
Appears in 2 contracts
Samples: Credit Agreement (Layne Christensen Co), Credit Agreement (Layne Christensen Co)
Investments, Loans, Advances, Guarantees and Acquisitions. The No Borrower will, nor will not, and will not it permit any of its Restricted Subsidiaries other Loan Party to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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) make any assets of any other Person constituting a business unitAcquisition, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investmentsexisting investments and advances described on Schedule 6.04 hereto, but no increase in the amount thereof;
(c) investments existing on the date hereof and set forth on Schedule 6.04loans or advances solely among Loan Parties;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall if no Default exists or would be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12)caused thereby, (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee no Default exists at the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed time of, or would be caused by, the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests incurrence of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) aboveGuarantees;
(ge) 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;
(hf) the Loan Parties may create one or more Subsidiaries to conduct the business of the Borrowers in accordance with Section 5.03 so long as such Subsidiaries promptly after their creation become Guarantors;
(g) Permitted Acquisitions; PROVIDED that the sum of all consideration and
(other than common Equity Interests of Holdingsh) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price addition to investments, loans and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause advances permitted by paragraphs (a) of through (g) above, other investments, loans and advances by the definition of Borrowers and the term Prepayment Event Guarantors provided that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in the aggregate amount invested, loaned or loans advanced pursuant to this paragraph (h) (determined without regard to any other Person received as noncash consideration for saleswrite-downs or write-offs of such investments, transfers, leases loans and other dispositions permitted by Section 6.05; and 95 90
(jadvances) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount does not to exceed $25,000,000 at any time outstanding500,000 in the aggregate, (ii) no Default exists or would be caused thereby, and (iii) the aggregate unused amount of the ABL Revolving Commitments on a pro forma basis after giving effect to such additional investment, loan or advance equals or exceeds $10,000,000.
Appears in 2 contracts
Samples: Floor Plan First Lien Credit Agreement (Alta Equipment Group Inc.), Floor Plan First Lien Credit Agreement (B. Riley Principal Merger Corp.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiaries Subsidiary to, form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Restricted Subsidiary prior to such merger) any evidences of Indebtedness or 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 unitunit (whether through purchase of assets, merger or otherwise), except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investmentsinvestments in existence on the date hereof and described in Schedule 6.04;
(c) investments existing on by Holdings in the date hereof Borrower and set forth on Schedule 6.04;
(d) investments by the Borrower and its Restricted the Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED , provided that (iA) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Security Agreement (subject to the limitations applicable to the pledge of Equity Interests in of a Foreign Subsidiaries set forth Subsidiary referred to in Section 5.12), 5.14) and (iiB) the aggregate amount of investments by Loan Parties in, and loans and advances by in Subsidiaries that are not Loan Parties to, (together with outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(d) and outstanding Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on permitted under the Effective Dateproviso to Section 6.04(e)) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale each case determined without regard to any write-downs or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);
(ed) loans or advances made by the Borrower any Loan Party to any Subsidiary and made by any Restricted Subsidiary to the Borrower a Loan Party or any other Subsidiary; PROVIDED , provided that (A) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Security Agreement and (B) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject not Loan Parties (together with outstanding investments permitted under clause (B) to the limitations set forth proviso to Section 6.04(c) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $25,000,000 at any time outstanding (in clause (d) aboveeach case determined without regard to any write-downs or write-offs);
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with outstanding investments permitted under clause (B) to the limitations set forth in proviso to Section 6.04(c) and outstanding intercompany loans permitted under clause (dB) aboveto the proviso to Section 6.04(d)) shall not exceed $25,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(f) loans or advances made by a Loan Party to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $2,500,000 in the aggregate at any one time outstanding;
(g) notes payable, or stock or other securities issued by Account Debtors to a Loan Party pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in the ordinary course of business, consistent with past practices;
(h) investments in the form of Swap Agreements permitted by Section 6.07;
(i) investments of any Person existing at the time such Person becomes a Subsidiary of the Borrower or consolidates or merges with the Borrower or any of the Subsidiaries (including in connection with a Permitted Acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(j) investments received in connection with the bankruptcy or reorganization of, or settlement disposition of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of businessassets permitted by Section 6.05;
(hk) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events investments constituting deposits described in clause clauses (ac) and (d) of the definition of the term Prepayment Event that are applied“Permitted Encumbrances”;
(l) investments consisting of extension of trade credit in the ordinary course of business, consistent with past practices;
(m) Permitted Acquisitions;
(n) investments consisting of Equity Interests received by a Loan Party as consideration in connection with the bankruptcy of an unaffiliated Person or any settlement with any such Person effected in accordance with the terms hereof; provided, that, in the case of any of the foregoing, such Equity Interests shall be promptly pledged to the Administrative Agent in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,0005.14;
(io) any investments in the form of loans or loans capital contributions to any other Person received as noncash consideration for salesXxxx Luotong Metals (GZ) Co., transfersLtd., leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments ina Chinese limited liability company, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at 1,200,000 less the amount of any time outstandingsuch investments existing as of the date hereof; provided, that, no Loan Party shall make any such loan or capital contribution unless no Default or Event of Default shall exist or have occurred and be continuing as of the date of such loan or capital contribution and after giving effect thereto;
(p) investments received in connection with the dispositions of assets permitted by Section 6.05(e) or (g);
(q) Guarantees by the Borrower or any of the Subsidiaries of leases (other than Capital Lease Obligations) or of other obligations of the Borrower or any of its Subsidiaries that do not constitute Indebtedness, in each case entered into in the ordinary course of business that is consistent with past practice;
(r) investments made after the Effective Date by the Borrower and/or any of its Subsidiaries in an aggregate outstanding amount not to exceed the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (r); and
(s) in addition to investments otherwise expressly permitted by this Section, investments by the Borrower or any of its Subsidiaries, so long as after giving effect to such investment (i) the Total Net Leverage Ratio, calculated on a pro forma basis, would not exceed 1.50:1.00 and (ii) no Default or Event of Default has occurred and is continuing.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Global Brass & Copper Holdings, Inc.), Term Loan Credit Agreement (Global Brass & Copper Holdings, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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 unitunit (whether through purchase of assets, merger or otherwise), except:
(a) Permitted Investments, subject to control agreements in favor of the AcquisitionAdministrative Collateral Agent for the benefit of the Lenders or otherwise subject to a perfected security interest in favor of the Administrative Collateral Agent for the benefit of the Lenders subject to Permitted Perfection Limitations;
(b) Permitted InvestmentsLoans, advances, guarantees and investments in existence on the date of this Agreement and described in Schedule 6.04;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower Loan Parties and its their respective Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED , provided that (iA) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge applicable Security Agreement (subject to the limitations applicable to the pledge common stock of Equity Interests in Foreign certain foreign Subsidiaries set forth referred to in Section 5.125.13 and subject to Permitted Perfection Limitations), (iiB) the aggregate amount of investments made pursuant to this clause (c) after the Effective Date by Loan Parties in, and loans and advances by their respective Restricted Subsidiaries in Subsidiaries that are not Loan Parties to, and Guarantees by Loan Parties or are members of Indebtedness of, Unrestricted Subsidiaries the Cott Mexican Group (including all such investments, loans, advances and Guarantees existing on together with outstanding intercompany loans made after the Effective DateDate permitted under clause (B) to the proviso to Section 6.04(d) and outstanding Guarantees made after the Effective Date permitted under the proviso to Section 6.04(e)) shall not exceed $25,000,000 5,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale each case determined without regard to any write-downs or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed write-offs); provided that if Aggregate Availability (after giving effect to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositioninvestment) and (iii) is at least $100,000,000 then the aggregate amount of investments by permitted to be made under clause (B) (together with outstanding intercompany loans made after the Effective Date permitted under clause (B) to the proviso to Section 6.04(d) and outstanding Guarantees made after the Effective Date permitted under the proviso to Section 6.04(e)) shall be increased to $15,000,000 at any one time outstanding, (C) the Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, their respective Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on other than members of the Effective DateCott Mexican Group) shall not exceed 5% make any investments in Equity Interests in any member of Total Assets the Cott Mexican Group after the Effective Date and (D) no investments permitted under this clause (c) shall be permitted to be made at any time outstanding (it being understood that, for purposes an Event of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that Default has occurred and is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)continuing;
(ed) loans or advances made by the any Borrower to any Subsidiary or any other Borrower and made by any Restricted Subsidiary to the any Borrower or any other Subsidiary; PROVIDED , provided that (A) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the applicable Security Agreement and (B) the amount of such loans and advances made by Loan Parties and their respective Restricted Subsidiaries to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject not Loan Parties or are members of the Cott Mexican Group pursuant to the limitations set forth in this clause (d) aboveafter the Effective Date (together with outstanding investments made after the Effective Date permitted under clause (B) to the proviso to Section 6.04(c) and outstanding Guarantees made after the Effective Date permitted under the proviso to Section 6.04(e)) shall not exceed $5,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs); provided that if Aggregate Availability (after giving effect to such investment) is at least $100,000,000 then the aggregate amount of loans and advances permitted to be outstanding under clause (B) (together with outstanding investments made after the Effective Date permitted under clause (B) to the proviso to Section 6.04(c) and outstanding Guarantees made after the Effective Date permitted under the proviso to Section 6.04(e)) shall be increased to $15,000,000 at any one time outstanding and provided, further, that no investments permitted under this subclause (B) of this clause (d) shall be permitted to be made at any time an Event of Default has occurred and is continuing;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties or that is a member of the Cott Mexican Group that is Guaranteed by any Loan Party or by their respective Restricted Subsidiaries pursuant to this clause (e) after the Effective Date (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(c) made after the Effective Date and outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(d) made after the Effective Date) shall not exceed $5,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs); provided that if Aggregate Availability (after giving effect to such investment) is at least $100,000,000 then the aggregate amount of Guarantees permitted under this clause (e) (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(c) made after the Effective Date and outstanding intercompany loans made after the Effective Date under clause (B) to the proviso to Section 6.04(d)) shall be subject increased to $15,000,000 at any one time outstanding;
(f) loans or advances made by any Loan Party or any of their respective Restricted Subsidiaries to its employees on an arms’-length basis in the limitations set forth ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $1,000,000 in clause (d) abovethe aggregate at any one time outstanding;
(g) subject to the applicable provisions of any Security Agreements (including Sections 4.2(a) and 4.4 of the U.S. Security Agreement and Sections 4.2(a) and 4.4 of the Canadian Security Agreement), notes payable, or stock or other securities issued by Account Debtors to any Loan Party or any of their respective Restricted Subsidiaries pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in the ordinary course of business, consistent with past practices;
(h) investments in the form of Swap Agreements permitted by Section 6.08;
(i) investments of any Person (other than a Person that was an Unrestricted Subsidiary prior to becoming a Restricted Subsidiary) existing at the time such Person becomes a Restricted Subsidiary of a Borrower or consolidates or merges with a Borrower or any of its Restricted Subsidiaries, in each case, in connection with a Permitted Acquisition, so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(j) investments received in connection with the bankruptcy or reorganization of, or settlement dispositions of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of businessassets permitted by Section 6.05;
(hk) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events investments constituting deposits described in clause clauses (ac) and (d) of the definition of the term Prepayment “Permitted Encumbrances”;
(l) investments by the Company and its Restricted Subsidiaries in the form of Permitted Acquisitions, provided that (A) the Company and its Restricted Subsidiaries may not make any Permitted Acquisition unless the Aggregate Availability (after giving effect to such Permitted Acquisition) as of the date such Permitted Acquisition is to be made is at least $50,000,000, (B) the Company and its Restricted Subsidiaries may not make any Permitted Acquisition that would result in aggregate Acquisition Consideration for all Permitted Acquisitions over the term of this Agreement exceeding $25,000,000 unless (x) the Aggregate Availability (after giving effect to such Permitted Acquisition) as of the date such Permitted Acquisition is to be made is at least $75,000,000 and (y) the Fixed Charge Coverage Ratio, determined as of the date such Permitted Acquisition is to be made and after giving effect to such Permitted Acquisition, is at least 1.1 to 1.0 and (C) the aggregate Acquisition Consideration for all Permitted Acquisitions over the term of this Agreement may not exceed $50,000,000;
(m) investments in the form of repurchases of capital stock of the Company or any of its Restricted Subsidiaries permitted by Section 6.09(a)(iv);
(n) investments in the form of redemptions or purchases of the Senior Subordinated Notes permitted by Section 6.09(b)(vii);
(o) [***] [ Certain extensions of credit redacted]
(p) loans and advances to members of the Cott Mexican Group, provided that (A) no such loans or advances shall be made if Aggregate Availability (at such time and after giving effect to such loans and advances) is less than $37,500,000, (B) such loans and advances shall not exceed $5,000,000 in the aggregate if Aggregate Availability (at such time and after giving effect to such loans and advances) is at least $37,500,000 but less than $50,000,000, (C) such loans and advances shall not exceed $10,000,000 in the aggregate if Aggregate Availability (at such time and after giving effect to such loans and advances) is at least $50,000,000 but less than $75,000,000, (D) such loans and advances shall not exceed $20,000,000 in the aggregate if Aggregate Availability (at such time and after giving effect to such loans and advances) is at least $75,000,000, (E) any such loans and advances shall be evidenced by a promissory note in the form and substance satisfactory to the Administrative Agent pledged pursuant to the applicable Security Agreement and (F) no such loans and advances shall be permitted to be made at any time an Event of Default has occurred and is continuing;
(q) investments by the members of the Cott Mexican Group not otherwise permitted by this Section in the form of acquisitions or investments in joint ventures, provided that (A) such investments shall be made in the form of cash or property or a Guarantee (valued at fair market value) of members of the Cott Mexican Group and (B) the amount of investments shall not exceed $3,500,000 at any time outstanding; and
(r) (i) loans, advances and other investments by members of the Cott Mexico Group that are appliedLoan Parties in or to other members of the Cott Mexico Group that are Loan Parties and (ii) loans, advances and other investments by members of the Cott Mexico Group that are not Loan Parties in or to other members of the Cott Mexico Group that are not Loan Parties; provided that (x) other than as permitted in clause (p) above, no investments by any Loan Party in any member of the Cott Mexican Group shall be permitted under this Section 6.04 until such member of the Cott Mexican Group has become a Loan Guarantor hereunder and has granted Liens to the Administrative Collateral Agent in any of its property which constitutes Collateral, in each case, in accordance with Section 2.11(c)5.15 and (y) no investments by any Loan Party in BCB International or BCB European shall be permitted under this Section 6.04. For the purposes of this Section 6.04, to make such Permitted Acquisitions) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed in connection with, or resulting from, Permitted Acquisitions (including Indebtedness “amount” of any acquired loan, advance, extension of credit or investment made by any Person or Persons outstanding at (collectively, the time of “Investors”) in any other Person or Persons (collectively, the applicable Permitted Acquisition“Recipient”) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000;be:
(i) any investments in or loans with respect to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments inloans, advances or loans extensions of credit made by any Investor to any Recipient, an amount equal to (A) the principal amount of loans, advances and extensions of credit made to the Recipient, directly or Guarantees indirectly, by the Investor less (B) the amount of Indebtedness ofany repayments of principal of such loans, advances or extensions of credit made, directly or indirectly, by the Recipient to the Investor; and
(ii) with respect to any Person investment made by any Investor in an aggregate any Recipient, (A) the amount not of capital contributions made in the Recipient, directly or indirectly, by the Investor less (B) the amount of any dividends and distributions made by such Recipient (directly or indirectly) to exceed $25,000,000 at any time outstandingsuch Investor with respect to such investment.
Appears in 2 contracts
Samples: Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly Owned Subsidiary prior to such merger) any Equity Interests in or 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, except:
(a) the Acquisition;
(b) Permitted Investments;
(cb) investments existing on the date hereof and set forth on Schedule 6.046.05(b), to the extent such investments would not be permitted under any other clause of this Section;
(dc) investments by the Borrower and its Restricted Subsidiaries (other than any Special Purpose Subsidiary) in Equity Interests in their respective the Capital Stock of the Restricted Subsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary shares of capital stock held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge common stock of Equity Interests in a Foreign Subsidiaries set forth Subsidiary referred to in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of no investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted may be made in Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)Parties;
(ed) loans or advances made by the Borrower to any Restricted Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary; PROVIDED provided that the amount of any such loans and advances made by a Loan Parties Party shall be evidenced by a promissory note pledged pursuant to Unrestricted Subsidiaries, the Pledge Agreement and no loans or advances may be made to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) abovenot Loan Parties;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer any release and termination of such Guarantee of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(gf) 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) the San Xxxx Acquisition;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000THC San Diego Merger;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90the Mercury Acquisition;
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding.the Wireless 2000 Acquisition;
(k) the LMDS Merger;
(l) [intentionally omitted];
(m) [intentionally omitted];
(n) the Gulf Telecomm Acquisition;
(o) the Indus Acquisition; (p) the Idus Loan;
Appears in 2 contracts
Samples: Credit Agreement (Telecorp PCS Inc /Va/), Credit Agreement (Telecorp Communications Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly-Owned Subsidiary prior to such merger) any Equity Interests in or 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investmentsinvestments by the Borrower existing on the date hereof in the capital stock of its Subsidiaries;
(c) loans, advances or investments existing on made among the date hereof and set forth on Schedule 6.04Credit Parties;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(ge) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts loans and disputes with, customers advances made to employees and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) shareholders of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person Borrower in an aggregate amount not to exceed $25,000,000 500,000 at any time outstanding; and
(f) subject to the provisions of this Section 6.04(f) and the requirements contained in the definition of Permitted Acquisition, the Borrower and its Wholly-Owned Subsidiaries may from time to time effect Permitted Acquisitions, so long as: (i) no Default shall have occurred and be continuing at the time of the consummation of the proposed Permitted Acquisition or immediately after giving effect thereto; (ii) the consideration to be paid by the Borrower and its Wholly-Owned Subsidiaries when aggregated with all other Permitted Acquisitions since the Effective Date is less than $10,000,000; (iii) the Borrower shall have given to the Administrative Agent written notice of such proposed Permitted Acquisition on the earlier of (x) the date on which the Permitted Acquisition is publicly announced and (y) ten (10) Business Days prior to consummation of such Permitted Acquisition (or such shorter period of time as may be reasonably acceptable to the Administrative Agent), which notice shall be executed by its chief financial officer or treasurer and (A) shall describe in reasonable detail the principal terms and conditions of such Permitted Acquisition and (B) include computations in reasonable detail reflecting that after giving effect to such proposed Permitted Acquisition and any Indebtedness to be incurred in connection therewith, the Borrower is in compliance with Sections 6.09 and 6.10 hereof; and (iv) at the time of any such Permitted Acquisition involving the creation or acquisition of a Subsidiary, or the acquisition of capital stock or other Equity Interest of any Person, the Borrower and its Subsidiaries shall have complied with Section 5.10 and the Security Documents.
Appears in 2 contracts
Samples: Credit Agreement (Vera Bradley, Inc.), Credit Agreement (Vera Bradley, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investments;
(c) investments existing on the date hereof Effective Date and set forth on Schedule 6.04;
(dc) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Restricted Subsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Guarantee and Collateral Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Datepursuant to this Section 6.04(c) shall not exceed 5the greater of (x) $10,000,000 and (y) 1.0% of Total Assets Assets, at any time outstanding outstanding, when combined with any Investments in Foreign Subsidiaries under clauses (d), (e), (h) and (j) of this Section 6.04 (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(ed) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED provided that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause clauses (dc) aboveand (j) of this Section 6.04, as applicable;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee any Indebtedness of the Subordinated Debt Borrower or any Subsidiary Loan Party unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee and Collateral Agreement, (B) in the case of any Guarantee of Subordinated Debt, 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 applicable Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents applicable Guaranteed Indebtedness that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause clauses (dc) aboveand (j) of this Section 6.04, as applicable;
(f) loans and advances to, or guarantees of Indebtedness of, officers, directors and employees in an amount not to exceed $5.0 million at any time outstanding;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED provided that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described such Investments in respect of Permitted Acquisitions of Restricted Subsidiaries that are Foreign Subsidiaries shall be subject to the limitations set forth in clause (ac) of the definition of the term Prepayment Event that are applied, in accordance with this Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,0006.04;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90;
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed exceed, when combined with any amounts permitted to be invested, loaned, guaranteed, or advanced under Section 6.04(c)(ii), the greater of (x) $25,000,000 50,000,000 and (y) 5.0% of Total Assets, at any time outstanding; provided, however, that (x) no more than an amount equal to the greater of (i) $10,000,000 and (ii) 1.0% of Total Assets, may be used for the purposes permitted under Section 6.04(c)(ii); (y) to the extent any investments, advances, loans, or Guarantees of Indebtedness permitted under this Section 6.04(j) are used for Joint Ventures, the Equity Interests (or similar interests) held by the Borrower or any Restricted Subsidiary in such Joint Venture shall be pledged pursuant to the Guarantee and Collateral Agreement, to the extent required to be pledged thereby (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12); and (z) the aggregate amount of investments in, advances or loans to or Guarantees of Indebtedness of, Unrestricted Subsidiaries shall not exceed (x) $10,000,000 and (y) 1.0% of Total Assets, at any time outstanding (it being understood that, for purposes of determining under this Agreement the amount of outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(k) Guarantees by the Borrower of obligations (other than Indebtedness) of a Subsidiary Loan Party;
(l) Investments in Hedge Agreements permitted under Section 6.01;
(m) Loans and advances to officers, directors and employees for business related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business; and
(n) prepaid expenses, deposits, advances, loans or extensions of trade credit in the ordinary course of business by the Borrower or any Restricted Subsidiary.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Ami Celebrity Publications, LLC), Revolving Credit Agreement (Ami Celebrity Publications, LLC)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiaries Subsidiary to, form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Restricted Subsidiary prior to such merger) ), or commit to purchase, hold or acquire any evidences of Indebtedness or 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 (or commit to make) any loans or advances to, Guarantee any obligations of, or make or permit to exist (or commit to make) any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unitunit (whether through purchase of assets, merger or otherwise), except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investmentsinvestments in existence on the date hereof and described in Schedule 6.04;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower and its Restricted the Subsidiaries in Equity Interests in their respective Domestic Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)Security Agreement;
(ed) loans or advances made by the Borrower any Loan Party to any Subsidiary and made by any Restricted Domestic Subsidiary to the Borrower a Loan Party or any other Domestic Subsidiary; PROVIDED , provided that the amount of any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Security Agreement and (B) no such loans and advances may be made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) abovenot Loan Parties;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that ;
(if) loans or advances made by a Restricted Subsidiary shall not Guarantee Loan Party to its employees on an arms-length basis in the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreementordinary course of business consistent with past practices for travel and entertainment expenses, (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 relocation costs and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply similar purposes up to a sale maximum of such Equity Interests by the Borrower, and (ii) $100,000 in the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by at any Loan Party shall be subject to the limitations set forth in clause (d) aboveone time outstanding;
(g) notes payable, or stock or other securities issued by Account Debtors to a Loan Party pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in the ordinary course of business, consistent with past practices;
(h) investments in the form of Swap Agreements permitted by Section 6.07;
(i) investments of any Person existing at the time such Person becomes a Subsidiary of the Borrower or consolidates or merges with the Borrower or any of the Subsidiaries (including in connection with a permitted acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(j) investments received in connection with the bankruptcy or reorganization of, or settlement disposition of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of businessassets permitted by Section 6.05;
(hk) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events investments constituting deposits described in clause clauses (ac) and (d) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such “Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;Encumbrances”; and
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(jl) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount Investments not to exceed $25,000,000 at any time outstanding500,000 in the aggregate.
Appears in 2 contracts
Samples: Credit Agreement (A.S.V., LLC), Credit Agreement (Manitex International, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any optionhold, warrant or other right to acquire any of the foregoing) ofacquire, 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 unitInvestment, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsInvestments (other than in Subsidiaries) existing on the date hereof;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments Investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party in a Domestic Subsidiary or a Significant Foreign Subsidiary shall be pledged pursuant to the Collateral Agreement or a Foreign Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests of a Significant Foreign Subsidiary referred to in Foreign Subsidiaries set forth in Section 5.12), the definition of “Collateral and Guarantee Requirement”) and (ii) the aggregate cumulative amount of investments Investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees guarantees by Loan Parties of Indebtedness or other obligations of, Unrestricted Foreign Subsidiaries (including all excluding any such investments, loans, advances and Guarantees equity Investments existing on the Effective Date) Date and any such loans, advances or guarantees existing on the Effective Date and set forth on Schedule 6.01), taken together with the aggregate amount of Guarantees of Indebtedness or Attributable Debt of Franchisees permitted under Section 6.01(a)(xiii), shall not exceed $25,000,000 90,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(ed) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED provided that (i) such loans or advances comply with the applicable provisions of Section 6.01(a) and (ii) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Foreign Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations limitation set forth in clause (dc) above;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(g) investments 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;
(hf) Permitted Acquisitions; PROVIDED that the sum ;
(g) Investments consisting of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount permitted to be received in respect of Net Proceeds from Prepayment Events described in clause sales or dispositions of assets permitted by Section 6.05;
(ah) Investments consisting of the definition Guarantees of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000Franchisees permitted by Section 6.01(a)(xiii);
(i) guarantees by the Borrower or other Loan Parties of obligations other than Indebtedness of any investments Subsidiary Loan Party, in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05each case in the ordinary course of business; and 95 90and
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person Investments in an aggregate cumulative amount not to exceed in excess of $25,000,000 at any time outstanding50,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Blockbuster Inc), Credit Agreement (Blockbuster Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and nor will not it permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the Acquisition;
(b) Permitted Investments;
(cb) investments existing on the date hereof and set forth on Schedule 6.04;
(c) Permitted Acquisitions;
(d) investments by the Borrower and its Restricted the Subsidiaries in Equity Interests in their respective SubsidiariesSubsidiaries that exist immediately prior to any applicable transaction; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Guarantee and Collateral Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), extent required by this Agreement and (ii) the aggregate amount of investments (excluding any such investments, loans, advances and Guarantees to such Subsidiaries that are assumed and exist on the date any Permitted Acquisition is consummated and that are not made, incurred or created in contemplation of or in connection with such Permitted Acquisition) by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on that are not Loan Parties made after the Effective Date) Closing Date shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)$40,000,000;
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Guarantee and Collateral Agreement and (ii) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above6.01(a)(vii);
(g) Guarantees in respect of any Specified Vendor Payables Financing;
(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;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90;
(j) Guarantees by the Borrower and the Subsidiaries of leases entered into by any Subsidiary as lessee; provided that the amount of such Guarantees made by Loan Parties to Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (d) above;
(k) extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;
(l) loans or advances to employees made in the ordinary course of business consistent with prudent business practice and not exceeding $2,500,000 in the aggregate outstanding at any one time;
(m) investments in the form of Hedging Agreements permitted under Section 6.07;
(n) [reserved];
(o) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(p) Permitted Joint Venture and Foreign Subsidiary Investments;
(q) investments, loans or advances in addition to those permitted by the other clauses of this Section 6.04 not exceeding in the aggregate $40,000,000 at any time outstanding, provided that no Default exists at the time that such investment, loan or advance is made or is caused thereby;
(r) investments in, advances made (i) in an amount not to exceed the Net Proceeds of any issuance of Equity Interests in the Borrower issued on or loans to after the Closing Date or Guarantees of Indebtedness of, (ii) with Equity Interests in the Borrower;
(s) investments by the Borrower or any Person Subsidiary in an aggregate amount not to exceed $25,000,000 at the Available Amount; and
(t) other investments by the Borrower or any time outstandingSubsidiary so long as the Net Leverage Ratio (calculated on a pro forma basis after giving effect to such investment and any related incurrence or repayment of Indebtedness) is less than 2.50 to 1.00.
Appears in 2 contracts
Samples: Credit Agreement (Horizon Global Corp), Term Loan Credit Agreement (Horizon Global Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The No Borrower will, nor will not, and will not it permit any of its Restricted Subsidiaries other Loan Party to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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) make any assets of any other Person constituting a business unitAcquisition, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investmentsexisting investments and advances described on Schedule 6.04 hereto, but no increase in the amount thereof;
(c) investments existing on the date hereof and set forth on Schedule 6.04loans or advances solely among Loan Parties;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall if no Default exists or would be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12)caused thereby, (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee no Default exists at the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed time of, or would be caused by, the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests incurrence of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) aboveGuarantees;
(ge) 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;
(hf) the Loan Parties may create one or more Subsidiaries to conduct the business of the Borrowers in accordance with Section 5.03 so long as such Subsidiaries promptly after their creation become Guarantors;
(g) Permitted Acquisitions; PROVIDED that the sum of all consideration and
(other than common Equity Interests of Holdingsh) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price addition to investments, loans and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause advances permitted by paragraphs (a) of through (g) above, other investments, loans and advances by the definition of Borrowers and the term Prepayment Event Guarantors provided that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in the aggregate amount invested, loaned or loans advanced pursuant to this paragraph (h) (determined without regard to any other Person received as noncash consideration for saleswrite-downs or write-offs of such investments, transfers, leases loans and other dispositions permitted by Section 6.05; and 95 90
(jadvances) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount does not to exceed $25,000,000 at any time outstanding500,000 in the aggregate, (ii) no Default exists or would be caused thereby, and (iii) the aggregate unused amount of the Revolving Commitments on a pro forma basis after giving effect to such additional investment, loan or advance equals or exceeds $10,000,000.
Appears in 2 contracts
Samples: Abl First Lien Credit Agreement (Alta Equipment Group Inc.), Abl First Lien Credit Agreement (B. Riley Principal Merger Corp.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Restricted Subsidiary prior to such merger) any Equity Interests Interest in or evidences of indebtedness 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 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 assets of, or assets constituting a division, unit or line of business of, any other Person constituting a business unit(each of the foregoing, an “Investment”), except:
(a) Investments in connection with the AcquisitionPropco Transactions;
(b) Permitted InvestmentsCash Equivalents;
(c) investments Investments existing on the date hereof Sixth ARCA Effective Date and set forth listed on Schedule 6.04;
(d) investments Investments by the Borrower and its Restricted Subsidiaries subsidiaries in Equity Interests in their respective Subsidiariessubsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary Interest held by a Loan Party shall be pledged pursuant to the Pledge Security Agreement as required to satisfy clause (subject to b) of the limitations applicable to the pledge definition of Equity Interests in Foreign Subsidiaries set forth in Section 5.12)“Collateral and Guarantee Requirement”, and (ii) the aggregate amount of investments such Investments by Loan Collateral Support Parties in, and in Equity Interests in Subsidiaries that are not Collateral Support Parties made after the Sixth ARCA Effective Date in reliance on this clause (d) shall not exceed (together with (x) any loans and advances by Loan Collateral Support Parties to, to Subsidiaries that are not Collateral Support Parties made in reliance on clause (e) below and (y) any Guarantees by Loan Collateral Support Parties of Indebtedness of, Unrestricted or other obligations of Subsidiaries that are not Collateral Support Parties made in reliance on clause (including all such investments, loans, advances and Guarantees existing on the Effective Datef) shall not exceed below) $25,000,000 75,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, each case determined at the sale time made and without regard to any subsequent write-downs or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED provided that the amount of such loans and advances made in reliance on this clause (e) after the Sixth ARCA Effective Date by Loan Collateral Support Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Collateral Support Parties shall be subject to the limitations limitation set forth in clause (ii) of the proviso in clause (d) above;
(f) (x) Guarantees constituting Indebtedness permitted by Section 6.016.01 and (y) guarantees provided in the ordinary course of business of obligations of any Wireline Company (other than Indebtedness); PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) any Person providing any 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance Indebtedness shall have complied with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the BorrowerSection 5.10 with respect thereto, and (ii) the aggregate principal amount of Indebtedness and other obligations of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Collateral Support Parties that is Guaranteed by any Loan Party Collateral Support Parties shall be subject to the limitations limitation set forth in clause (ii) of the proviso in clause (d) above;
(g) investments received any Investment acquired by any Wireline Company (i) in exchange for any other Investment or accounts receivable held by such Wireline Company in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the bankruptcy issuer of such other Investment or reorganization ofaccounts receivable or (ii) as a result of a foreclosure by any Wireline Company with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(h) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or settlement purchases of delinquent accounts and disputes with, customers and supplierscontract rights or licenses or leases of intellectual property, in each case in the ordinary course of business;
(hi) Investments that constitute Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Asset Exchanges and Permitted Acquisitions (including the principal amount any xxxx xxxxxxx money deposits required in connection with any Permitted Acquisition);
(j) loans or advances to employees of any Indebtedness issued Wireline Company not exceeding $5,000,000 in the aggregate outstanding at any time;
(k) commission, payroll, travel and similar advances to officers and employees to cover matters that are expected at the time of such advances ultimately to be treated as deferred purchase price and expenses of the fair market value Wireline Companies in accordance with GAAP;
(l) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(m) Investments in the form of Swap Agreements permitted by Section 6.07;
(n) Investments of any other non-cash consideration but excluding Person existing at the amount 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 Net Proceeds such Person becoming a Subsidiary or of such consolidation or merger;
(o) Investments resulting from Prepayment Events pledges or deposits described in clause (ab) or (c) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such “Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000Encumbrance”;
(ip) Investments received in connection with the disposition of any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions asset permitted by Section 6.05;
(q) advances to customers or suppliers in the ordinary course of business that are, in conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the balance sheet of the Borrower or any of its Subsidiaries and endorsements for collection or deposit arising in the ordinary course of business;
(r) Investments arising from any transaction permitted by Section 6.08;
(s) Investments existing on the Sixth ARCA Effective Date in participation certificates or Equity Interests of any Lender and additional Investments made after the Sixth ARCA Effective Date in any such participation certificates or Equity Interests (including accruals on such certificates or Equity Interests made by such Lender in accordance with such Lender’s bylaws and capital plan);
(t) Investments arising as a result of Permitted Receivables Financings;
(u) Equity Interests of Propco held by the Borrower on the Sixth ARCA Effective Date;
(v) Investments in Equity Interests of Propco acquired from officers, directors, and employees of a Wireline Company in connection with the fulfilment of a Wireline Company’s tax withholding obligations arising from the issuance of such Equity Interests in connection with the Spinoff; and 95 90and
(w) so long as no Event of Default of the type described in paragraph (a), (b), (i) or (j) of Article 7 has occurred and is continuing or would result therefrom, additional Investments in any other investments Person (provided that any such Person is either (i) not an Affiliate of the Borrower or (ii) is an Affiliate of the Borrower (A) solely because the Borrower, directly or indirectly, owns Equity Interests in, advances or loans to controls, such Person or Guarantees of Indebtedness of, any Person (B) engaged in bona fide business operations and is an Affiliate solely because it is under common control with the Borrower) having an aggregate amount Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (w) since the Sixth ARCA Effective Date and then outstanding not to exceed the sum (calculated as of the date of such Investment was made after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (i) Available Distributable Cash plus (ii) Available Equity Proceeds plus (iii) the greater of (x) $25,000,000 150,000,000 and (y) 2% of Total Assets plus (iv) the aggregate amount of cash equal to the net reduction in Investments made pursuant to this clause (w) in any Person since the Sixth ARCA Effective Date resulting from repayments of loans or advances, or other transfers of assets, in each case to the Borrower or any Subsidiary or from the net proceeds received in cash, from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Consolidated Adjusted Net Income); provided that any Investment made pursuant to this clause (w) in any Person that is not a Wireline Company at any the time outstandingsuch Investment is made may, if such Person thereafter becomes a Wireline Company, from and after such date be deemed to have been made pursuant to clause (d), (e) or (f)(ii), as applicable, and not pursuant to this clause (w).
Appears in 2 contracts
Samples: Credit Agreement (Windstream Holdings, Inc.), Credit Agreement (Windstream Services, LLC)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly Owned Subsidiary prior to such merger) any Equity Interests in 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 unitunit (collectively, “Investments”), except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsInvestments existing on the Effective Date and set forth on Schedule 6.5;
(c) investments existing intercompany Investments made by the Parent Borrower and its Subsidiaries in any Subsidiary (other than any Receivables Entity) 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 and set forth on Schedule 6.04aggregate amount of outstanding Investments made pursuant to this proviso to this subsection (c) by Loan Parties after the Effective Date in or with respect to Subsidiaries (other than any Receivables Entity) that are not Wholly Owned Subsidiary Guarantors shall not exceed an amount equal to 15% of the Total Consolidated Assets (it being understood that the amount of any intercompany Investment made pursuant to this paragraph (c) in exchange for the forgiveness of any Indebtedness owing to the Person in which such Investment is made shall be determined net of the amount of such Indebtedness forgiven);
(d) investments by loans and advances to employees of the Parent Borrower or any Subsidiary in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for the Parent Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant not to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 20,000,000 at any one time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.016.2; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Senior Notes, any Subordinated Debt or any Other Permitted Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee and Collateral Agreement, (B) in the case of any Guarantee of Subordinated Debt, 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 the sale or transfer Disposition of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligationsrelevant Subsidiary, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Wholly Owned Subsidiary Guarantors that is Guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause paragraph (dc) aboveabove and (iii) a Subsidiary shall not Guarantee the Indebtedness of any Loan Party unless such Subsidiary has also Guaranteed the Obligations pursuant to the Guarantee and Collateral Agreement;
(f) Permitted Acquisitions (including any related Investment in any Subsidiary in order to provide all or any portion of (but not more than) the Consideration for such Permitted Acquisition);
(g) investments received in connection with Guarantees by the bankruptcy Parent Borrower and any of its Subsidiaries of any Contractual Obligations (not constituting Indebtedness) of the Parent Borrower or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of businessany Subsidiary;
(h) Permitted Acquisitions; PROVIDED that intercompany Investments in any Wholly Owned Subsidiary created by the sum Parent Borrower or any of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered its Subsidiaries in connection with any corporate restructuring; provided that (i) such newly-created Subsidiary is, or contemporaneously with the consummation of such restructuring becomes, a Wholly Owned Subsidiary Guarantor, (ii) all property transferred to such newly-created Subsidiary that constituted Collateral shall continue to constitute Collateral as to which the Administrative Agent has a first priority perfected security interest, subject to Permitted Acquisitions Encumbrances, and (iii) contemporaneously with the consummation of such restructuring (A) the Capital Stock (and, after the occurrence of the Ratings Event, the 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 (B) the Parent 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 the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events actions described in clause (a) Section 5.12, all at the expense of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000Loan Parties;
(i) any investments Investments in or loans the Xxxxxxx XX as at the Effective Date and additional Investments in the Xxxxxxx XX in an aggregate amount from the Effective Date through and including the date of such Investment not to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90exceed $75,000,000;
(j) Investments financed with Capital Stock of the Parent Borrower (or the net proceeds of the issuance of Capital Stock of the Parent Borrower); provided that (i) the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to such Investment, with the covenants contained in Section 6.1, in each case recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower for which the relevant information is available as if such Investment had occurred on the first day of each relevant period for testing such compliance (as demonstrated, in the case of any Investment for which the aggregate cost is greater than or equal to $100,000,000, in a certificate of a Financial Officer delivered to the Administrative Agent prior to the consummation of such Investment) and (ii) no Default or Event of Default shall occur after giving effect to such Investment;
(k) Investments comprised of capital contributions (whether in the form of cash, a note or other assets) to a Receivables Entity or otherwise resulting from transfers of assets permitted by Section 6.6(c);
(l) Investments comprised of non-cash consideration received by the Parent Borrower or any Subsidiary in connection with any Disposition permitted by Section 6.6(d) or (e); provided that such non-cash consideration received in connection with any Disposition permitted by Section 6.6(d) or (e) either (i) constitutes not more than 25% of the aggregate consideration received in connection with such Disposition or (ii) is comprised of securities, notes or other obligations that are converted, sold or exchanged within 90 days of receipt thereof by the Parent Borrower or such Subsidiary into cash;
(m) (i) Guarantees by the Parent Borrower and any of its Subsidiaries of the Chinese Loan Facility permitted by Section 6.2(o) and (ii) Guarantees in the form of Foreign Credit Instruments or Joint Signature Foreign Credit Instruments caused to be issued by the Parent Borrower or any Foreign Subsidiary Borrower pursuant to Section 2.6 to support the Indebtedness of SPX Corporation (China) Co., Ltd. or any other investments inChinese Subsidiary permitted by Section 6.2(q); and
(n) other Investments, advances or loans so long as, after giving effect to or Guarantees of Indebtedness ofany such Investment, any Person in an the aggregate amount of Investments made pursuant to this paragraph (n) at any one time outstanding shall not to exceed $25,000,000 at 500,000,000. The outstanding amount of any time outstandingInvestment shall be equal to the sum of (x) the original cost of such Investment, plus (y) the cost of all additions thereto, minus (z) any cash proceeds from the disposition of or other cash distributions on such Investment, without any adjustments for increases or decreases in value or write-ups, write-downs or write-offs with respect to such Investment; provided that the amount of any Investment shall not be less than zero.
Appears in 2 contracts
Samples: Credit Agreement (SPX Corp), Credit Agreement (SPX Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower CCSC will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the Acquisition;
(b) Permitted Investments;
(cb) investments existing on the date hereof (or in respect of which a binding commitment to make such investment exists on the Effective Date) and set forth on Schedule 6.04;
(dc) investments by the Borrower CCSC and its Restricted Subsidiaries in Equity Interests in their respective SubsidiariesSubsidiary Loan Parties and investments by Subsidiaries that are not Subsidiary Loan Parties in Equity Interests in other Subsidiaries that are not Subsidiary Loan Parties; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the a Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in of a Foreign Subsidiaries set forth Subsidiary referred to in Section 5.12), 5.11) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries that are not Loan Parties (including excluding all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 100,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(ed) loans or advances made by the Borrower CCSC to any Subsidiary and made by any Restricted Subsidiary to the Borrower CCSC or any other Subsidiary; PROVIDED provided that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (dc) above;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause (dc) above;
(gf) 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;
(hg) Permitted Acquisitions; PROVIDED that investments in joint ventures in an aggregate amount (including the value of all assets contributed to or held by any Subsidiary which merged or consolidated with any Person in order to form such joint venture), on a cumulative basis subsequent to the Effective Date, not exceeding the sum of all consideration (i) $50,000,000, plus (ii) the aggregate amount of dividends, interest, principal payments and returns of capital received from time to time subsequent to the Effective Date by CCSC and its Subsidiaries in respect of investments made under this clause (g), provided that (A) the aggregate amount invested in joint ventures subsequent to the Effective Date (excluding amounts invested in reliance upon clause (ii) above) shall not at any time exceed $50,000,000 and (B) for purposes of determining compliance with the foregoing limitations, any Guarantee by CCSC or any Subsidiary of Indebtedness or other than common monetary obligations of a joint venture shall be deemed to constitute an investment therein in an amount equal to the Indebtedness or other monetary obligations so Guaranteed;
(h) loans and advances to employees of CCSC or its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses);
(i) investments consisting of the purchase of the Equity Interests of Holdingsany Person, if the purpose and effect of such investment is the acquisition, directly or indirectly, of fixed or capital assets, and such investment is made in lieu of the purchase or construction by CCSC or its Subsidiaries of such fixed or capital assets;
(j) investments to the extent that the consideration paid or otherwise delivered by CCSC and its Subsidiaries is capital stock of CCSC;
(k) other loans, advances and investments not in connection with Permitted Acquisitions (including excess of $75,000,000 outstanding at any time, provided that the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the total amount of Net Cash Proceeds received from Prepayment Events described in clause (a) of the definition of thereof since the term Prepayment Event that are applied, Effective Date and applied in accordance with Section 2.11(c), to make such Permitted Acquisitions2.05(d)(i) 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 Acquisition2.12(c) shall not exceed, on a cumulative basis during the term of this Agreement, exceeds $50,000,000500,000,000;
(il) notes or other evidence of Indebtedness acquired as consideration in connection with a sale, transfer, lease or other disposition of any investments in asset by CCSC or loans any of its Subsidiaries, to any other Person received as noncash consideration for sales, transfers, leases and other dispositions the extent permitted by Section 6.05; and 95 90and
(jm) investments in Equity Interests in any other Receivables Subsidiary and loans, advances, Guarantees and investments in, advances or loans arising pursuant to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstandingPermitted Receivables Financing.
Appears in 2 contracts
Samples: Credit Agreement (Crown Cork & Seal Co Inc), Credit Agreement (Crown Cork & Seal Co Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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 unitunit (whether through purchase of assets, merger or otherwise), except:
(a) Permitted Investments, subject to control agreements in favor of the AcquisitionAdministrative Collateral Agent for the benefit of the Lenders or otherwise subject to a perfected security interest in favor of the Administrative Collateral Agent for the benefit of the Lenders subject to Permitted Perfection Limitations;
(b) Permitted InvestmentsLoans, advances, guarantees and investments in existence on the date of this Agreement and described in Schedule 6.04;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower Loan Parties and its their respective Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED , provided that (iA) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge applicable Security Agreement (subject to the limitations applicable to the pledge common stock of Equity Interests in Foreign certain foreign Subsidiaries set forth referred to in Section 5.125.13 and subject to Permitted Perfection Limitations), (iiB) the aggregate amount of investments made pursuant to this clause (c) after the Effective Date by Loan Parties in, and loans and advances by their respective Restricted Subsidiaries in Subsidiaries that are not Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on together with outstanding intercompany loans made after the Effective DateDate permitted under clause (B) to the first proviso to Section 6.04(d) and outstanding Guarantees made after the Effective Date permitted under the first proviso to Section 6.04(e)) shall not exceed $25,000,000 10,000,000 at any time outstanding (it being understood thatin each case determined without regard to any write-downs or write-offs); provided that if Aggregate Availability (after giving effect to such investment) is at least $100,000,000, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) then the aggregate amount of investments by permitted to be made under clause (B) on such date (together with outstanding intercompany loans made after the Effective Date permitted under clause (B) to the first proviso to Section 6.04(d) and outstanding Guarantees made after the Effective Date permitted under the first proviso to Section 6.04(e)) shall be increased to $20,000,000 for the purpose of the making of such investment on such date, (C) the Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, their respective Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on shall not make any investments in Equity Interests in any member of the Cott Mexican Group after the Effective DateDate and (D) no investments permitted under this clause (c) shall not exceed 5% of Total Assets be permitted to be made at any time outstanding (it being understood thatan Event of Default has occurred and is continuing; provided, for purposes of determining outstanding investments in Restricted Subsidiaries further, that are Foreign Subsidiaries, the sale no Borrower or disposition by a Loan Party of an Subsidiary may make any investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments Equity Interests of any member of the Cott Mexican Group in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionreliance on this clause (c);
(ed) loans or advances made by the any Borrower to any Subsidiary or any other Borrower and made by any Restricted Subsidiary to the any Borrower or any other Subsidiary; PROVIDED , provided that (A) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the applicable Security Agreement and (B) the amount of such loans and advances made by Loan Parties and their respective Restricted Subsidiaries to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject not Loan Parties pursuant to the limitations set forth in this clause (d) aboveafter the Effective Date (together with outstanding investments made after the Effective Date permitted under clause (B) to the first proviso to Section 6.04(c) and outstanding Guarantees made after the Effective Date permitted under the first proviso to Section 6.04(e)) shall not exceed $10,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs); provided that if Aggregate Availability (after giving effect to such loan or advance) is at least $100,000,000, then the aggregate amount of loans and advances permitted to be made under clause (C) on such date (together with outstanding investments made after the Effective Date permitted under clause (B) to the first proviso to Section 6.04(c) and outstanding Guarantees made after the Effective Date permitted under the first proviso to Section 6.04(e)) shall be increased to $20,000,000 for the purposes of making such loan or advance on such date and provided, that no investments permitted under this subclause (B) of this clause (d) shall be permitted to be made at any time an Event of Default has occurred and is continuing; provided, further, that no Borrower or Subsidiary may make any loan or advance to any member of the Cott Mexican Group in reliance on this clause (d);
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party or by their respective Restricted Subsidiaries pursuant to this clause (e) after the Effective Date (together with outstanding investments permitted under clause (B) to the first proviso to Section 6.04(c) made after the Effective Date and outstanding intercompany loans permitted under clause (B) to the first proviso to Section 6.04(d) made after the Effective Date) shall not exceed $10,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs); provided that if that if Aggregate Availability (after giving effect to such Guarantee) is at least $100,000,000, then the aggregate amount of Guarantees permitted to be made under this clause (e) on such date (together with outstanding investments permitted under clause (B) to the first proviso to Section 6.04(c) made after the Effective Date and outstanding intercompany loans made after the Effective Date under clause (B) to the first proviso to Section 6.04(d)) shall be subject increased to $20,000,000 for the limitations set forth purposes of entering into such Guarantee on such date; provided, further, that no Borrower or Subsidiary may Guarantee any Indebtedness of any member of the Cott Mexican Group in reliance on this clause (de);
(f) aboveloans or advances made by any Loan Party or any of their respective Restricted Subsidiaries to its employees on an arms’-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $1,000,000 in the aggregate at any one time outstanding;
(g) subject to the applicable provisions of any Security Agreements (including Sections 4.2(a) and 4.4 of the U.S. Security Agreement and Sections 4.2(a) and 4.4 of the Canadian Security Agreement), notes payable, or stock or other securities issued by Account Debtors to any Loan Party or any of their respective Restricted Subsidiaries pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in the ordinary course of business, consistent with past practices;
(h) investments in the form of Swap Agreements permitted by Section 6.08;
(i) investments of any Person (other than a Person that was an Unrestricted Subsidiary prior to becoming a Restricted Subsidiary) existing at the time such Person becomes a Restricted Subsidiary of a Borrower or consolidates or merges with a Borrower or any of its Restricted Subsidiaries, in each case, in connection with a Permitted Acquisition, so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(j) investments received in connection with the bankruptcy or reorganization of, or settlement dispositions of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of businessassets permitted by Section 6.05;
(hk) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events investments constituting deposits described in clause clauses (ac) and (d) of the definition of the term Prepayment “Permitted Encumbrances”;
(l) investments by the Company and its Restricted Subsidiaries in the form of Permitted Acquisitions, provided that (A) the Company and its Restricted Subsidiaries may not make any Permitted Acquisition unless both Borrowers’ Aggregate Availability on the date of such investment and Borrowers’ average Aggregate Availability over the prior thirty day period ending on such date (in each case after giving effect to such Permitted Acquisition) is at least $50,000,000, (B) the Company and its Restricted Subsidiaries may not make any Permitted Acquisition that would result in aggregate Acquisition Consideration for all Permitted Acquisitions over the term of this Agreement exceeding $25,000,000 unless (x) both Borrowers’ Aggregate Availability on the date of such investment and Borrowers’ average Aggregate Availability over the prior thirty day period ending on such date (in each case after giving effect to such Permitted Acquisition) is at least $75,000,000 and (y) the Fixed Charge Coverage Ratio, determined as of the date such Permitted Acquisition is to be made and after giving effect to such Permitted Acquisition, is at least 1.1 to 1.0 and (C) the aggregate Acquisition Consideration for all Permitted Acquisitions over the term of this Agreement may not exceed $50,000,000;
(m) investments in the form of repurchases of capital stock of the Company or any of its Restricted Subsidiaries permitted by Section 6.09(a)(iv);
(n) investments in the form of purchases of the 2009 Notes and the 2010 Notes permitted by Sections 6.09(b)(ix) through (xii).
(o) [***][ Certain extensions of credit redacted]
(p) loans and advances to members of the Cott Mexican Group, provided that (A) no such loans or advances shall be made if Aggregate Availability (at such time and after giving effect to such loans and advances) is less than $37,500,000, (B) such loans and advances shall not exceed $5,000,000 in the aggregate if Aggregate Availability (at such time and after giving effect to such loans and advances) is at least $37,500,000 but less than $50,000,000, (C) such loans and advances shall not exceed $10,000,000 in the aggregate if Aggregate Availability (at such time and after giving effect to such loans and advances) is at least $50,000,000 but less than $75,000,000, (D) such loans and advances shall not exceed $20,000,000 in the aggregate if Aggregate Availability (at such time and after giving effect to such loans and advances) is at least $75,000,000, (E) any such loans and advances shall be evidenced by a promissory note in the form and substance satisfactory to the Administrative Agent pledged pursuant to the applicable Security Agreement and (F) no such loans and advances shall be permitted to be made at any time an Event of Default has occurred and is continuing;
(q) investments by the members of the Cott Mexican Group not otherwise permitted by this Section in the form of acquisitions or investments in joint ventures, provided that (A) such investments shall be made in the form of cash or property or a Guarantee (valued at fair market value) of members of the Cott Mexican Group and (B) the amount of investments shall not exceed $3,500,000 at any time outstanding;
(r) (i) loans, advances and other investments by members of the Cott Mexico Group that are appliedLoan Parties in or to other members of the Cott Mexico Group that are Loan Parties and (ii) loans, advances and other investments by members of the Cott Mexico Group that are not Loan Parties in or to other members of the Cott Mexico Group that are not Loan Parties;
(s) the Cliffstar Acquisition and loans, advances and other investments described in the definition of “Restructuring” (other than the last sentence thereof);
(t) the sale or other disposition of assets (the “Transferor Assets”) by a Borrower or Restricted Subsidiary (the “Transferor”) to a Person that is not a Borrower or Subsidiary (the “Transferee”) in exchange for assets (the “Transferee Assets”) (such transaction being an “Asset Exchange”) so long as (i) before and after giving effect to such Asset Exchange no Default or Event of Default shall have occurred and be continuing, (ii) after giving effect to Asset Exchange (and the removal of any Transferred Assets from the Borrowing Base), the Borrowers shall have at least $70 million of Aggregate Availability, (iii) the Transferee Assets are of they type generally used in Permitted Business, (iv) the fair market value of the Transferee Assets is no less than the fair market value of the Transferor Assets, (v) the Board of Transferor shall have determined that the Asset Swap is in the best interest of the Transferor and (vi) at least fifteen days prior to the consummation of the Asset Exchange, Transferor shall have provided the Administrative Agent and each Collateral Agent a listing, in reasonable detail, of all of the Transferred Assets. Each Borrower acknowledges and agrees that none of the Transferee Assets shall be included in the Borrowing Base until such time and appraisals satisfactory in form and substance to the Administrative Agent and each Collateral Agent have been delivered to the Administrative Agent and each Collateral Agent and each shall have determined that they are otherwise satisfied with the inclusion of such assets in the Borrowing Base; and
(u) investments by the Company in Equity Interests in, and the making of capital contributions to, BCB International, provided that (A) contemporaneously with such investment, (i) BCB International makes an investment in the Equity Interests of, or makes a capital contribution to, BCB European and (ii) BCB European make an investment in the Equity Interests of, or makes a capital contribution to, a Loan Party, in each case in an amount equal to the investment made by the Company in BCB International, (B) any such Equity Interests held by a Loan Party shall be pledged pursuant to the applicable Security Agreement (subject to the limitations applicable to common stock of certain foreign Subsidiaries referred to in Section 5.13 and subject to Permitted Perfection Limitations), and (C) no investments permitted under this clause (u) shall be permitted to be made at any time an Event of Default has occurred and is continuing; provided, further, that no Borrower or Subsidiary may make any investment in Equity Interests of, or makes a capital contribution to, any member of the Cott Mexican Group in reliance on this clause (u); provided that (x) other than as permitted in clause (p) above, no investments by any Loan Party in any member of the Cott Mexican Group shall be permitted under this Section 6.04 until such member of the Cott Mexican Group has become a Loan Guarantor hereunder and has granted Liens to the Administrative Collateral Agent in any of its property which constitutes Collateral, in each case, in accordance with Section 2.11(c)5.15 and (y) except as provided in clause (u) above, to make such Permitted Acquisitions) plus no investments by any Loan Party in BCB International or BCB European shall be permitted under this Section 6.04. For the aggregate principal amount purposes of all Indebtedness otherwise incurred or assumed in connection withthis Section 6.04, or resulting from, Permitted Acquisitions (including Indebtedness the “amount” of any acquired loan, advance, extension of credit or investment made by any Person or Persons outstanding at (collectively, the time of “Investors”) in any other Person or Persons (collectively, the applicable Permitted Acquisition“Recipient”) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000;be:
(i) any investments in or loans with respect to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments inloans, advances or loans extensions of credit made by any Investor to any Recipient, an amount equal to (A) the principal amount of loans, advances and extensions of credit made to the Recipient, directly or Guarantees indirectly, by the Investor less (B) the amount of Indebtedness ofany repayments of principal of such loans, advances or extensions of credit made, directly or indirectly, by the Recipient to the Investor; and
(ii) with respect to any Person investment made by any Investor in an aggregate any Recipient, (A) the amount not of capital contributions made in the Recipient, directly or indirectly, by the Investor less (B) the amount of any dividends and distributions made by such Recipient (directly or indirectly) to exceed $25,000,000 at any time outstandingsuch Investor with respect to such investment.
Appears in 2 contracts
Samples: Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiaries Subsidiary to, form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Restricted Subsidiary prior to such merger) any evidence of Indebtedness or 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 unitunit (whether through purchase of assets, merger or otherwise) (each of the foregoing, an “Investment”), except:
(a) Permitted Investments, subject to control agreements in favor of the AcquisitionAdministrative Agent for the benefit of the applicable Secured Parties or otherwise subject to a perfected security interest in favor of the Administrative Agent for the benefit of the applicable Secured Parties;
(b) Permitted Investments(i) Investments in existence on the Effective Date and (ii) Investments described in Schedule 6.04;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments Investments by the Borrower Borrowers and its the Restricted Subsidiaries in Equity Interests in their respective Restricted Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party Party, subject to the Intercreditor Agreement, shall be pledged pursuant to the Pledge a Security Agreement (subject to the limitations applicable to the pledge of Equity Interests in of a Foreign Subsidiaries set forth Subsidiary referred to in Section 5.125.14), (ii) the aggregate amount of investments no such Investment by any Borrower or any other Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) Party shall be made in a Restricted Subsidiary that is not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party unless both immediately before and immediately after giving effect to such Investment, (A) no Event of an investment Default then exists or would arise as a result of any such Investment and (B) Borrowers are in an Unrestricted Subsidiary shall be deemed to reduce investments compliance on a pro forma basis with the financial covenant contained in Unrestricted Subsidiaries by an amount equal Section 6.12 based on the financial statements and compliance certificate for the most recently ended fiscal quarter that have been delivered to the Net Proceeds of such sale or dispositionAdministrative Agent pursuant to Section 5.01(b) and Section 5.01(c), and (iii) the aggregate amount of investments Investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiariesnot Loan Parties (together with outstanding intercompany loans permitted under clause (ii) to the proviso to Section 6.04(d) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed, at the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that time any such Investment is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by made, an amount equal to (x) $10,000,000 plus (y) the Net Proceeds of Cash Distribution Amount at such sale time (in each case determined without regard to any write-downs or dispositionwrite-offs);
(ed) loans or advances made by the Borrower any Loan Party to any Restricted Subsidiary and made by any Restricted Subsidiary to the Borrower a Loan Party or any other Restricted Subsidiary; PROVIDED , provided that (i) any such loans and advances (x) owed by a Loan Party to a Restricted Subsidiary that is not a Loan Party shall be evidenced by the Master Intercompany Note, and (y) owed to a Loan Party in excess of $250,000 individually or $1,000,000 in the aggregate shall be evidenced by a promissory note and pledged pursuant to Section 4.4 of the U.S. Security Agreement (or the applicable provisions of any other Security Agreement), (ii) theii) the aggregate outstanding principal amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject not Loan Parties (together with outstanding Investments permitted under clause (iii) to the limitations set forth proviso to Section 6.04(c) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed, at the time any such loan or advance is made, an amount equal to (x) $10,000,000 plus (y) the Cash Distribution Amount at such time (in clause each case determined without regard to any write-downs or write-offs) and (diii) abovethe tenor of any loan or advance made by any Loan Party to any Restricted Subsidiary that is not a Loan Party shall not exceed (x) six (6) months, if the principal amount of such loan or advance is less than $5,000,000 and (y) twelve (12) months, if the principal amount of such loan or advance is greater than or equal to $5,000,000;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with outstanding Investments permitted under clause (iii) to the limitations set forth in proviso to Section 6.04(c) and outstanding intercompany loans permitted under clause (dii) aboveto the proviso to Section 6.04(d)) shall not exceed, at the time any such Guarantee is made, an amount equal to (x) $10,000,000 plus (y) the Cash Distribution Amount at such time (in each case determined without regard to any write-downs or write-offs);
(f) loans or advances made by a Loan Party to its employees in the ordinary course of business consistent with past practices up to a maximum of $2,500,000 in the aggregate at any one time outstanding;
(g) investments notes payable, or stock or other securities issued by Account Debtors to a Loan Party pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in the ordinary course of business, consistent with past practices;
(h) Investments in the form of Swap Agreements permitted by Section 6.07;
(i) Investments of any Person existing at the time such Person becomes a Restricted Subsidiary of a Borrower or consolidates or merges with a Borrower or any of the Restricted Subsidiaries (including in connection with a Permitted Acquisition) so long as such Investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(j) Investments received in connection with the Disposition of assets permitted by Section 6.05;
(k) Investments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”;
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes withwith or judgments against, customers and suppliers, in each case in the ordinary course of business;
(hm) Investments constituting Permitted Acquisitions; PROVIDED Acquisitions so long as the Acquisition Payment Conditions are satisfied;
(n) Investments to the extent that the sum payment for such Investment is made in exchange for, or with the proceeds of all consideration (other than common substantially contemporarily issued, Equity Interests of Holdingsthe BorrowersCompany; and
(o) paid or otherwise delivered other Investments, including Investments in connection with Permitted Acquisitions (including Unrestricted Subsidiaries and Foreign Subsidiaries, so long as the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that Payment Conditions are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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 satisfied at the time of each such Investment is made; provided, that, the applicable Permitted Acquisition) Payment Conditions shall not exceedapply to, on a cumulative basis during and the term Loan Parties and Restricted Subsidiaries may convert the Series A Convertible Preferred Units held by the Loan Parties and their Restricted Subsidiaries into common units of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstandingCSI Compressco LP.
Appears in 2 contracts
Samples: Credit Agreement (Tetra Technologies Inc), Credit Agreement (Tetra Technologies Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or Capital Stock, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactionstransactions (including pursuant to any merger)) any assets of any other Person constituting a business unit, or purchase, hold or acquire any “derivative” (other than a Hedging Agreement permitted by Section 7.07), except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investmentsinvestments existing on the Effective Date and set forth in Schedule 7.04;
(c) investments existing on made by the date hereof and set forth on Schedule 6.04Borrower in the equity securities of the Subsidiaries; provided that any such equity securities owned by the Borrower shall become Pledged Equity pursuant to the Security Agreement;
(d) investments made by a Subsidiary in the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiariesequity securities of any other Subsidiary; PROVIDED provided that (i) any such equity securities owned by such Subsidiary shall become Pledged Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)Security Agreement;
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) any such loans or advances constituting Pledged Debt shall be evidenced by a Restricted Subsidiary promissory note which shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations be pledged pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, Security Agreement and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted all loans and advances made by the Borrower and the Domestic Subsidiaries to all Subsidiaries that are Foreign Subsidiaries, not a Domestic Subsidiary shall not exceed $3,000,000 at any time outstanding;
(f) loans or advances made by the Borrower to any Subsidiary; provided that is Guaranteed by (i) any Loan Party such loans or advances constituting Pledged Debt shall be subject evidenced by a promissory note which shall be pledged pursuant to the limitations set forth in clause Security Agreement and (dii) abovethe aggregate amount of all loans and advances made by the Borrower and the Domestic Subsidiaries to all Subsidiaries that are not a Domestic Subsidiary shall not exceed $3,000,000 at any time outstanding;
(g) 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 businessacquisitions made by any Subsidiary from any other Subsidiary;
(h) Permitted Acquisitions; PROVIDED that acquisitions made by the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of Borrower from any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000Subsidiary;
(i) Permitted Acquisitions by the Borrower or any investments Subsidiary; provided that the Borrower shall have delivered to the Administrative Agent and the Lenders not less than 10 Business Days prior to the consummation of any such Permitted Acquisition a certificate of a Financial Officer of the Borrower in or loans form and substance satisfactory to any other Person received as noncash consideration the Administrative Agent and the Required Lenders evidencing projected pro forma compliance with Sections 7.12 and 7.13 after giving effect to such Permitted Acquisition for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90the period from the date of such Permitted Acquisition to the Revolving Maturity Date;
(j) Indebtedness permitted to be incurred pursuant to Section 7.01(a);
(k) investments made by the Borrower or any Subsidiary in any new Subsidiary of the Borrower or any Subsidiary (including, without limitation, a new Subsidiary acquired in connection with a Permitted Acquisition); provided, that after giving effect to such investment the aggregate stockholders’ equity of all direct or indirect non-wholly-owned Subsidiaries of the Borrower is not greater than 10% of the Consolidated stockholders’ equity of the Borrower determined in accordance with GAAP on a basis consistent with the financial statements delivered pursuant to Section 6.01(a); and
(l) other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding3,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Lifetime Brands, Inc), Credit Agreement (Lifetime Brands, Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower None of Xxxxxx USA, the Company or any other Subsidiary will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or hold, acquire (including pursuant to any merger or consolidation with any Person that was not a wholly wholly-owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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, 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 assets of Xxxxxx USA and the Subsidiaries, taken as a whole, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsInvestments existing on the date hereof in Subsidiaries;
(c) investments other Investments existing on the date hereof and set forth on Schedule 6.046.04 (but not any additions thereto made after the date hereof);
(d) investments by Xxxxxx USA, the Borrower Company and its Restricted the other Subsidiaries in Equity Interests in their respective Subsidiariessubsidiaries; PROVIDED provided that (i) such subsidiaries are Subsidiaries prior to such investments, (ii) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement extent required by the definition of the term “Collateral and Guarantee Requirement” and (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (iiiii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Unrestricted Subsidiaries that are not Loan Parties (including excluding all such investments, loans, advances and Guarantees existing on the Effective Datedate hereof and permitted by clause (c) above and up to an additional $20,000,000 for Investments in Ethanol Subsidiaries (including by Guarantee) to satisfy obligations under corn price Hedging Agreements) shall not exceed $25,000,000 10,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(e) loans or advances made by Xxxxxx USA, the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower Company or any other Subsidiary to any Subsidiary; PROVIDED provided that (i) the Indebtedness resulting therefrom is permitted by Section 6.01(d) and (ii) the amount of such loans and advances made by the Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (d) above;
(f) Guarantees constituting by Xxxxxx USA, the Company or any other Subsidiary of Indebtedness permitted by Section 6.01or other obligations of Xxxxxx USA, the Company or any other Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); PROVIDED provided that (i) a Restricted Subsidiary shall that has not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Secured Obligations pursuant to the Collateral Agreement shall not Guarantee Agreement, (B) such Guarantee any Indebtedness or other obligations 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, Loan Party and (ii) the aggregate principal amount of Indebtedness and other obligations of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause (d) above;
(g) investments Investments held by any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the date hereof, or Investments of any Person that are acquired by any Subsidiary as part of an acquisition of assets by such Subsidiary in a Permitted Acquisition, provided that such Investments exist at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and are not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being acquired;
(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;
(hi) Permitted Acquisitions; PROVIDED that Investments made as a result of the sum receipt of all noncash consideration (from a sale, transfer, lease or other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount disposition of any Indebtedness issued as deferred purchase price and asset in compliance with Section 6.05;
(j) Investments by Xxxxxx USA, the fair market value of Company or any other non-cash consideration Subsidiary that result solely from the receipt by Xxxxxx USA, the Company or such Subsidiary from any of its subsidiaries of a dividend or other Restricted Payment in the form of Equity Interests, evidences of Indebtedness or other securities (but excluding not any additions thereto made after the amount of Net Proceeds from Prepayment Events described in clause (a) date of the definition receipt thereof);
(k) Investments in the form of the term Prepayment Event Hedging Agreements permitted under Section 6.07;
(l) payroll, travel and similar advances to directors and employees of Xxxxxx USA or any Subsidiary to cover matters that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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 expected at the time of such advances to be treated as expenses of Xxxxxx USA or such Subsidiary for accounting purposes and that are made in the applicable Permitted Acquisition) shall not exceed, on a cumulative basis during the term ordinary course of this Agreement, $50,000,000business;
(im) loans or advances to directors and employees of Xxxxxx USA or any investments Subsidiary made in or the ordinary course of business; provided that the aggregate amount of such loans to and advances outstanding at any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90time shall not exceed $10,000,000;
(jn) any Permitted Acquisitions;
(o) without duplication of amounts paid pursuant to Section 6.08(b)(vi), other investments in, advances or loans to or Guarantees Investments with amounts that could otherwise have been paid as Restricted Payments under Section 6.08(a)(viii);
(p) Investments and acquisitions made as part of Indebtedness of, any Person the Transactions; and
(q) other Investments and acquisitions in an aggregate amount outstanding at any time not to exceed $25,000,000 at any time outstanding10,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Murphy USA Inc.), Credit Agreement (Murphy USA Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investments;
(c) investments and guarantees of Indebtedness of Foreign Subsidiaries existing on the date Effective Date hereof and set forth on Schedule 6.04;
(dc) investments by the Borrower and its Restricted the Subsidiaries that are Loan Parties in Equity Interests in their respective Subsidiaries that are Loan Parties and investments by Subsidiaries that are not Loan Parties in Equity Interests in their respective Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge voting stock of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed referred to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds definition of such sale or dispositionthe term "Collateral and Guarantee Requirement");
(ed) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED , provided that the amount of any such loans and advances made by a Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, Party shall be subject evidenced by a promissory note pledged pursuant to the limitations set forth in clause (d) abovePledge Agreement;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount 6.01 of Indebtedness of Unrestricted Subsidiaries, the Borrower or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Subsidiary Loan Party shall be subject to the limitations set forth in clause (d) aboveParty;
(gf) 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;
(hg) Permitted Acquisitions; PROVIDED , provided that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitionsconsideration) 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, on a cumulative basis during subsequent to the term of this AgreementEffective Date, $50,000,0005,000,000;
(ih) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; ;
(i) Guarantees by the Borrower and 95 90the Subsidiaries of leases entered into by any Subsidiary as lessee;
(j) extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;
(k) investments in payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(l) loans or advances to employees made in the ordinary course of business consistent with prudent business practice and not exceeding $500,000 in the aggregate outstanding at any one time;
(m) 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;
(n) investments in the form of Hedging Agreements permitted under Section 6.07;
(o) investments by the Borrower or any Subsidiary in (i) the capital stock of a Receivables Subsidiary and (ii) other interests in a Receivables Subsidiary, in each case to the extent determined by the Borrower in its judgment to be reasonably necessary in connection with or required by the terms of the Permitted Receivables Financing;
(p) investments, loans, advances, guarantees and acquisitions resulting from a foreclosure by the Borrower or any Subsidiary with respect to any secured investment or other transfer of title with respect to any secured investment in default;
(q) investments, loans, advances, guarantees and acquisitions the consideration for which consists solely of shares of common stock of the Borrower;
(r) investments in prepaid expenses, negotiable instruments held for collection and lease, utility, workers' compensation, performance and other similar deposits in the ordinary course of business; and
(s) other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 2,500,000 at any time outstanding.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc), Revolving Credit Agreement (Memc Electronic Materials Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly-Owned Subsidiary prior to such merger) any Equity Interests in or 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) make any assets of any other Person constituting a business unitAcquisition, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investments;
(c) investments , loans and advances existing on the date hereof and set forth on in Schedule 6.046.04 and extensions, renewals and replacements thereof that do not increase the outstanding amount thereof, as reduced from time to time;
(c) Investments in a Securitization Entity in connection with Permitted Securitization Transactions and in an aggregate outstanding amount acceptable to the Administrative Agent and required to consummate the Permitted Securitization Transactions plus accounts or notes receivable permitted to be transferred to a Securitization Entity in connection with Permitted Securitization Transactions;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12)Investments, (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(e) loans or advances made by the Borrower to or any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that Subsidiary (including, for the amount avoidance of doubt, any such Investments, loans and or advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to incurred in connection with the limitations set forth in clause (d) aboveAcquisitions);
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that Additional Acquisitions, provided that: (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless before and after giving pro forma effect thereto (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee as of the Subordinated Debt is subordinated to such Guarantee end of the Obligations on terms no less favorable to the Lenders than the subordination provisions most recently ended Fiscal Quarter of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereofBorrower), without action by any party, upon the sale no Default exists or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, be caused thereby and (ii) if such Additional Acquisition involves the aggregate principal amount acquisition of Indebtedness Equity Interests, the consummation of Unrestricted Subsidiaries, or such Additional Acquisition has been recommended by the Board of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts Directors and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) management of the definition target of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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 Additional Acquisition) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding.
Appears in 2 contracts
Samples: Cash Bridge Credit Agreement (PERRIGO Co PLC), Cash Bridge Credit Agreement (Perrigo Co)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiaries Subsidiary to, form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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 unitunit (whether through purchase of assets, merger or otherwise), except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investmentsinvestments in existence on the date hereof and investments made pursuant to commitments existing on the date hereof and described in Schedule 6.04 to the Disclosure Letter;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower and its Restricted the Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Security Agreement (subject to the limitations applicable to the pledge of Equity Interests in of a Foreign Subsidiaries set forth Subsidiary referred to in Section 5.125.12 and in the Collateral Documents);
(d) loans or advances made by any Loan Party to any Subsidiary and made by any Subsidiary to a Loan Party or any other Subsidiary, (ii) the aggregate amount of investments by Loan Parties in, and provided that any such loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition made by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries evidenced by an amount equal a promissory note pledged to the Net Proceeds of such sale or disposition) and (iii) extent required by the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)Security Agreement;
(e) Guarantees constituting Indebtedness permitted by Section 6.01;
(f) loans or advances made by the Borrower to or any Subsidiary to its employees on an arms-length basis in the ordinary course of business consistent for travel and entertainment expenses, relocation costs and similar purposes;
(g) investments consisting of extensions of credit in the nature of accounts receivable (including intercompany receivables and intercompany charges of expenses) or notes receivable arising from the grant of trade credit in the ordinary course of business and any prepayments and other credits to suppliers or vendors made in the ordinary course of business, endorsements for collection in the ordinary course of business, and investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss or in connection with a bankruptcy or reorganization;
(h) investments in the form of Swap Agreements permitted by Section 6.07;
(i) investments of any Restricted Person existing at the time such Person becomes a Subsidiary to of the Borrower or consolidates or merges with the Borrower or any other Subsidiary; PROVIDED that the amount Subsidiary (including in connection with a permitted acquisition), so long as such investments were not made in contemplation of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, Person becoming a Subsidiary or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) aboveof such merger;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(gj) investments received in connection with the bankruptcy or reorganization of, or settlement disposition of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of businessassets permitted by Section 6.05;
(hk) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events investments constituting deposits described in clause clauses (ac) and (d) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such “Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000Encumbrances”;
(il) investments constituting Permitted Acquisitions; and
(m) any investments in or loans to any other Person received as noncash consideration for salesinvestment, transfersloans, leases advances, guarantees and other dispositions permitted by acquisitions made at a time when Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding6.12 is satisfied.
Appears in 2 contracts
Samples: Credit Agreement (Roblox Corp), Credit Agreement (Roblox Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Restricted Subsidiary prior to such merger) any Equity Interests Interest 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 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 assets of, or assets constituting a division, unit or line of business of, any other Person constituting a business unit(each of the foregoing, an “Investment”), except:
(a) Investments in connection with the AcquisitionTransactions;
(b) Permitted InvestmentsCash Equivalents;
(c) investments Investments existing on the date hereof and set forth listed on Schedule 6.04;
(d) investments Investments by the Borrower and its Restricted Subsidiaries subsidiaries in Equity Interests in their respective Subsidiariessubsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary Interest held by a Loan Party shall be pledged pursuant to the Pledge Security Agreement as required to satisfy clause (subject to b) of the limitations applicable to the pledge definition of Equity Interests in Foreign Subsidiaries set forth in Section 5.12)“Collateral and Guarantee Requirement”, and (ii) the aggregate amount of investments such Investments by Loan Collateral Support Parties in, and in Equity Interests in Subsidiaries that are not Collateral Support Parties made after the Effective Date in reliance on this clause (d) shall not exceed (together with (x) any loans and advances by Loan Collateral Support Parties to, to Subsidiaries that are not Collateral Support Parties made in reliance on clause (e) below and (y) any Guarantees by Loan Collateral Support Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes or other obligations of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries not Collateral Support Parties made in reliance on clause (including all such investments, loans, advances f) below) $75,000,000 (in each case determined at the time made and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at without regard to any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale subsequent write-downs or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED provided that the amount of such loans and advances made in reliance on this clause (e) after the Effective Date by Loan Collateral Support Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Collateral Support Parties shall be subject to the limitations limitation set forth in clause (ii) of the proviso in clause (d) above;
(f) (x) Guarantees constituting Indebtedness permitted by Section 6.016.01 and (y) guarantees provided in the ordinary course of business of obligations of any Wireline Company (other than Indebtedness) under operating leases and similar contracts; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) any Person providing any 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance Indebtedness shall have complied with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the BorrowerSection 5.10 with respect thereto, and (ii) the aggregate principal amount of Indebtedness and other obligations of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Collateral Support Parties that is Guaranteed by any Loan Party Collateral Support Parties shall be subject to the limitations limitation set forth in clause (ii) of the proviso in clause (d) above;
(g) investments received any Investment acquired by any Wireline Company (i) in exchange for any other Investment or accounts receivable held by such Wireline Company in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the bankruptcy issuer of such other Investment or reorganization ofaccounts receivable or (ii) as a result of a foreclosure by any Wireline Company with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(h) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or settlement purchases of delinquent accounts and disputes with, customers and supplierscontract rights or licenses or leases of intellectual property, in each case in the ordinary course of business;
(hi) Investments that constitute Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Asset Exchanges and Permitted Acquisitions (including the principal amount any xxxx xxxxxxx money deposits required in connection with any Permitted Acquisition);
(j) loans or advances to employees of any Indebtedness issued Wireline Company not exceeding $5,000,000 in the aggregate outstanding at any time;
(k) commission, payroll, travel and similar advances to officers and employees to cover matters that are expected at the time of such advances ultimately to be treated as deferred purchase price and expenses of the fair market value Wireline Companies in accordance with GAAP;
(l) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(m) Investments in the form of Swap Agreements permitted by Section 6.07;
(n) Investments of any other non-cash consideration but excluding Person existing at the amount 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 Net Proceeds such Person becoming a Subsidiary or of such consolidation or merger;
(o) Investments resulting from Prepayment Events pledges or deposits described in clause (ab) or (c) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such “Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000Encumbrance”;
(ip) Investments received in connection with the disposition of any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions asset permitted by Section 6.05;
(q) advances to customers or suppliers in the ordinary course of business that are, in conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the balance sheet of the Borrower or any of its Subsidiaries and endorsements for collection or deposit arising in the ordinary course of business;
(r) Investments arising from any transaction permitted by Section 6.08;
(s) Investments existing on the date hereof in non-voting participation certificates of any Lender and additional Investments made after the Closing Date in any such non-voting participation certificates (including accruals on such certificates made by such Lender in accordance with its bylaws and capital plan); and 95 90and
(t) so long as no Event of Default of the type described in paragraph (a), (b), (i) or (j) of Article 7 has occurred and is continuing or would result therefrom, additional Investments in any other investments Person (provided that any such Person is either (i) not an Affiliate of the Borrower or (ii) is an Affiliate of the Borrower (A) solely because the Borrower, directly or indirectly, owns Equity Interests in, advances or loans to controls, such Person or Guarantees of Indebtedness of, any Person (B) engaged in bona fide business operations and is an Affiliate solely because it is under common control with the Borrower) having an aggregate amount Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (t) since the Effective Date and then outstanding not to exceed the sum (calculated as of the date of such Investment was made after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (i) Available Distributable Cash plus (ii) Available Equity Proceeds plus (iii) the greater of (x) $25,000,000 150,000,000 and (y) 2% of Total Assets plus (iv) the aggregate amount of cash equal to the net reduction in Investments made pursuant to this clause (t) in any Person since the Effective Date resulting from repayments of loans or advances, or other transfers of assets, in each case to the Borrower or any Subsidiary or from the net proceeds received in cash, from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Consolidated Adjusted Net Income); provided that any Investment made pursuant to this clause (t) in any Person that is not a Wireline Company at any the time outstandingsuch Investment is made may, if such Person thereafter becomes a Wireline Company, from and after such date be deemed to have been made pursuant to clause (d), (e) or (f)(ii), as applicable, and not pursuant to this clause (t).
Appears in 2 contracts
Samples: Credit Agreement (Windstream Corp), Credit Agreement (Windstream Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly wholly-owned Restricted Subsidiary prior to such mergermerger or consolidation) any 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsAcquisitions; provided that the aggregate amount of cash consideration paid in respect of all investments pursuant to this clause (b) if such investment is (i) an investment in the Equity Interests of any Person that does not become a Loan Party, or (ii) an investment in assets by a Restricted Subsidiary that is not a Subsidiary Loan Party shall not exceed at the time each such investment is made and after giving effect thereto, the greater of $55,000,000 and 20.0% of Consolidated EBITDA (calculated on a Pro Forma Basis as of the last day of the most recently ended Fiscal Quarter on or prior to the date of determination) (in each case determined without regard to any write-downs or write-offs);
(ci) investments existing on the date hereof Second Amendment Effective Date in the Borrower and the Restricted Subsidiaries, (ii) other investments existing on the Second Amendment Effective Date and set forth on Schedule 6.04 and (iii) any modification, replacement, renewal or extension of the foregoing; provided that the amount of the original investment is not increased unless otherwise permitted by this Section 6.04;
(d) investments by the Borrower and its the Restricted Subsidiaries in Equity Interests in of their respective Restricted Subsidiaries (including between or among Restricted Subsidiaries); PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to in accordance with the Pledge Agreement (subject to requirements of the limitations applicable to definition of the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), term “Collateral and Guarantee Requirement” and (ii) the aggregate amount of such investments made by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiariesnot Loan Parties (together with the aggregate principal amount of any (A) outstanding intercompany loans permitted under subclause (ii) to the proviso to clause (e) of this Section and (B) outstanding Guarantees permitted under the proviso to clause (e) of this Section) shall not exceed at the time such investment is made and after giving effect thereto, the sale greater of $55,000,000 and 20.0% of Consolidated EBITDA (calculated on a Pro Forma Basis as of the last day of the most recently ended Fiscal Quarter on or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal prior to the Net Proceeds date of such sale determination) (in each case determined without regard to any write-downs or dispositionwrite-offs);
(e) loans or advances made by the Borrower to any Restricted Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary; PROVIDED provided that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject not Loan Parties (together with the aggregate principal amount of any (A) outstanding investments permitted under subclause (ii) of the proviso to the limitations set forth in clause (d) aboveof this Section and (B) outstanding Guarantees permitted under the proviso to clause (f) of this Section) shall not exceed at the time such loan or advance is made and after giving effect thereto, the greater of $55,000,000 and 20.0% of Consolidated EBITDA (calculated on a Pro Forma Basis as of the last day of the most recently ended Fiscal Quarter on or prior to the date of determination) (in each case determined without regard to any write-downs or write-offs);
(f) Guarantees constituting of Indebtedness that is permitted under Section 6.01 (other than by reference to this Section 6.01; PROVIDED that (i6.04 or any subclause thereof) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreementor any other obligations, (B) such Guarantee in each case of the Subordinated Debt is subordinated to such Guarantee Borrower or any Restricted Subsidiary; provided that the total 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness and the aggregate amount of Unrestricted Subsidiariesother obligations, or in each case of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with the aggregate principal amount of any (A) outstanding investments permitted under subclause (ii) of the proviso to the limitations set forth in clause (d) aboveof this Section and (B) intercompany loans permitted under subclause (ii) to the proviso to clause (e) of this Section) shall not exceed at the time of such Guarantee and after giving effect thereto, the greater of $55,000,000 and 20.0% of Consolidated EBITDA (calculated on a Pro Forma Basis as of the last day of the most recently ended Fiscal Quarter on or prior to the date of determination) (in each case determined without regard to any write-downs or write-offs);
(g) loans or advances to officers, directors, members of management or employees of the Borrower or any Restricted Subsidiary made (i) in the ordinary course of business of the Borrower or such Restricted Subsidiary, as applicable, and (ii) in connection with such Person’s purchase of Equity Interests of the Borrower; 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; provided further that the aggregate amount of loans or advances permitted under this clause (g) (determined without regard to any write-downs or write-offs of such loans or advances) shall not exceed $5,000,000 in the aggregate outstanding at any time;
(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 Restricted Subsidiary for accounting purposes and that are made in the ordinary course of business;
(i) investments received (i) in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and or disputes withwith or judgments against, customers and suppliersany Person, or foreclosure or deed in lieu of foreclosure with respect to any Lien held as security for an obligation, in each case in the ordinary course of business, (ii) upon the foreclosure with respect to any secured investment, (iii) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes or (iv) in settlement of debt created in the ordinary course of business;
(hj) Permitted Acquisitions; PROVIDED that investments in the sum form of all consideration Hedging Agreements permitted by Section 6.06;
(other than common Equity Interests k) investments of Holdings) paid any Person existing at the time such Person becomes a Restricted Subsidiary or otherwise delivered consolidates or merges with the Borrower or any Restricted Subsidiary (including in connection with a Permitted Acquisitions Acquisition) so long as such investments were not made in contemplation of such Person becoming a Restricted Subsidiary or of such consolidation or merger;
(including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds l) investments resulting from Prepayment Events pledges or deposits described in clause (ac) or (d) of the definition of the term Prepayment Event “Permitted Encumbrance”;
(m) investments made as a result of the receipt of noncash consideration from a Disposition of any asset in compliance with Section 6.05;
(n) investments in any Subsidiary that are appliedis not a Loan Party in an amount required to permit such Subsidiary to consummate an investment that, if undertaken by a Loan Party, would be permitted under this Section 6.04 (other than investments permitted under Section 6.04(a));
(o) investments that result solely from the receipt by the Borrower or any Restricted Subsidiary from any of its subsidiaries of a dividend or other Restricted Payment in the form of Equity Interests, evidences of Indebtedness or other securities (but not any additions thereto made after the date of the receipt thereof);
(p) receivables or other trade payables owing to the Borrower or a Restricted 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 Restricted Subsidiary deems reasonable under the circumstances;
(q) mergers and consolidations permitted under Section 2.11(c)6.03 that do not involve any Person other than the Borrower and Restricted Subsidiaries that are wholly-owned Subsidiaries;
(r) investments made in connection with the funding of contributions under any non-qualified retirement plan or similar employee compensation plan, in each case entered into in the ordinary course of business and in an amount not to make exceed the amount of compensation expense recognized by the Borrower and its Restricted Subsidiaries in connection with such Permitted Acquisitionsplans;
(s) plus Guarantees by the Borrower and the Restricted Subsidiaries of leases of the Borrower and Restricted Subsidiaries (other than Capital Lease Obligations) or of other obligations not constituting Indebtedness, in each case entered into in the ordinary course of business and payments thereon or investments in respect thereof in lieu of such payments;
(t) investments consisting of endorsements for collection or deposit;
(u) investments (i) constituting deposits, prepayments and/or other credits to suppliers, (ii) made in connection with obtaining, maintaining or renewing client and customer contracts and/or (iii) in the form of advances made to distributors, suppliers, licensors and licensees, in each case, in the ordinary course of business;
(v) [reserved];
(w) so long as no Event of Default has occurred and is continuing, other investments, loans and advances by the Borrower or any Restricted Subsidiary in an aggregate amount, including all related commitments for future investments, loans or advances (and the principal amount of all any Indebtedness that is assumed or otherwise incurred or assumed in connection withwith such investment, loan or resulting fromadvance), Permitted Acquisitions (including Indebtedness not exceeding, at the time such investments, loans or advances are made and immediately after giving effect thereto, the Available Amount at such time, for all such investments made or committed to be made from and after the Effective Date; provided that in the event any such investment, loan or advance by the Borrower or any Restricted Subsidiary is made concurrently with an equity issuance the proceeds of which increase the Available Amount, any investment, loan or advance can be made in the same or lesser amount of the proceeds of such equity issuance notwithstanding the occurrence or continuation of any acquired Persons outstanding Event of Default; and
(x) other investments, loans and advances by the Borrower or any Restricted Subsidiary not otherwise permitted by this Section so long as at the time of the applicable Permitted Acquisitionmaking of any such investment, loan or advance made pursuant to this clause (x) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000;
and immediately after giving effect thereto (i) the Total Secured Net Leverage Ratio, calculated on a Pro Forma Basis as of the last day of the Fiscal Quarter of the Borrower most recently ended, is less than or equal to 2.50 to 1.00 and (ii) no Default or Event of Default has occurred and is continuing; provided that if the proceeds of any investments such investment will be applied to finance a Limited Condition Acquisition, compliance with this clause (x) shall be determined in accordance with Section 1.03. For purposes of compliance 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 loans 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 received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
with respect thereto (j) any other investments in, advances or loans but only to or Guarantees of Indebtedness of, any Person in an 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 and less any such amount which increases the Available Amount). Any investment that exceeds the limits of any particular clause set forth above may be allocated amongst more than one of such clauses to exceed $25,000,000 at any time outstandingpermit the incurrence of holding of such investment to the extent such excess is permitted as an investment under such other clauses.
Appears in 2 contracts
Samples: Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly-Owned Subsidiary of the Company and the Term Facility Borrower prior to such merger) any Equity Interests in or 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 make any Additional Acquisition (in one transaction or a series of transactions) any assets of any other Person constituting a business uniteach an “Investment”), except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investments;
(c) investments , loans and advances existing on the date hereof and set forth on in Schedule 6.04, and extensions, renewals and replacements thereof that do not increase the outstanding amount thereof, as reduced from time to time;
(c) Investments in a Securitization Entity in connection with Permitted Securitization Transactions and in an aggregate outstanding amount acceptable to the Administrative Agent and required to consummate the Permitted Securitization Transactions plus accounts or notes receivable permitted to be transferred to a Securitization Entity in connection with Permitted Securitization Transactions;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12)Investments, (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(e) loans or advances made by the Borrower to Company or any Subsidiary and made by any Restricted Subsidiary to the Borrower Company or any other Subsidiary; PROVIDED ;
(e) Additional Acquisitions, provided that before and after giving pro forma effect thereto (as of the amount end of such loans and advances made by Loan Parties to Unrestricted Subsidiariesthe most recently ended Fiscal Quarter of the Company), no Default exists or to Restricted Subsidiaries that are Foreign Subsidiaries, shall would be subject to the limitations set forth in clause (d) abovecaused thereby;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) by the Company or any Subsidiary of Indebtedness of the Company or any Subsidiary that is a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee AgreementGuarantor, (Bii) such Guarantee by any Subsidiary that is not a Guarantor of any Indebtedness of any Subsidiary or (iii) of any of the Subordinated Debt is subordinated to such Guarantee Obligations;
(g) Guarantees, Investments, loans or advances not otherwise permitted by this Section 6.04 not in excess of 15% of Consolidated Total Assets (at the Obligations on terms no less favorable to time of incurrence) in the Lenders than aggregate;
(i) Investments consisting of extensions of credit in the subordination provisions nature of accounts receivable or notes receivable arising from the Subordinated Debt and (C) such Guarantee grant of trade credit in the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer ordinary course of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrowerbusiness, and (ii) Investments (including debt obligations and Equity Interests) received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the aggregate principal amount ordinary course of Indebtedness of Unrestricted Subsidiaries, business or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations of, or settlement of delinquent accounts and other disputes with, customers and supplierssuppliers arising in the ordinary course of business or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(i) Investments in Swap Agreements in the ordinary course of business and not for speculative purposes;
(j) any Investment; provided that no Event of Default has occurred and is continuing at the time such investment is made;
(k) advances of payroll payments, in each case fees or other compensation to officers, directors, consultants or employees, in the ordinary course of business;
(hl) Permitted Acquisitions; PROVIDED Investments to the extent that the sum of all consideration (other than common payment for such Investments is made solely with Equity Interests of Holdingsthe Company; and
(m) paid or otherwise delivered lease, utility and similar deposits in connection with Permitted Acquisitions the ordinary course of business. It is acknowledged and agreed that any Guarantees permitted by clauses (including the principal amount of any Indebtedness issued as deferred purchase price f) and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (ag) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c)above, to make the extent such Permitted Acquisitions) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed Guarantee constitutes Indebtedness, are subject to compliance with any applicable limitations 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding6.01.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (PERRIGO Co PLC), Term Loan Credit Agreement (PERRIGO Co PLC)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiaries Subsidiary to, form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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 unitunit (whether through purchase of assets, merger or otherwise), except:
(a) Permitted Investments, subject to control agreements in favor of the Acquisition;Lender or otherwise subject to a perfected security interest in favor of the Lender.
(b) Permitted Investments;investments in existence on the date hereof and described in Schedule 6.04.
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower Loan Parties and its Restricted the Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Security Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth of a foreign Subsidiary referred to in Section 5.12), 5.14) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by in Subsidiaries that are not Loan Parties to, (together with outstanding intercompany loans permitted under Section 6.04(d) and outstanding Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Datepermitted under Section 6.04(e)) shall not exceed $25,000,000 200,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale each case determined without regard to any write-downs or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);.
(ed) loans or advances made by the Borrower any Loan Party to any Subsidiary and made by any Restricted Subsidiary to the Borrower a Loan Party or any other Subsidiary; PROVIDED , provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Security Agreement and (ii) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties (together with outstanding investments permitted under Section 6.04(c) and outstanding Guarantees permitted under Section 6.04(e)) shall be subject not exceed $200,000 at any time outstanding (in each case determined without regard to the limitations set forth in clause (d) above;any write-downs or write-offs).
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with outstanding investments permitted under clause (ii) to the limitations set forth in proviso to Section 6.04(c) and outstanding intercompany loans permitted under clause (dii) above;
to the proviso to Section 6.04(d)) shall not exceed $200,000 at any time outstanding (g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans determined without regard to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances write-downs or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstandingwrite-offs).
Appears in 2 contracts
Samples: Credit Agreement (CRAWFORD UNITED Corp), Credit Agreement (CRAWFORD UNITED Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsAcquisitions;
(c) investments by the Borrower in any Guarantor and by any Guarantor in any other Guarantor; provided that the Equity Interests evidencing such investments have been pledged in favour of the Administrative Agent and the certificates evidencing such Equity Interests have been delivered to the Administrative Agent together with stock transfer powers (executed in blank) with respect to same;
(d) direct and indirect investments existing on the date hereof by the Borrower in any Subsidiary which is not a Guarantor; provided that such investments are identified on Schedule 3.17;
(e) investments in existence on the date of this Agreement and set forth on described in Schedule 6.04;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(ef) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED , provided that (A) in the case of loans or advances from Loan Parties to Subsidiaries that are not Loan Parties, such loans and advances are made in the ordinary course of business and consistent with past practices and (B) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties (together with outstanding Guarantees permitted under the proviso to Section 6.04(g)) shall be subject not exceed $40,000,000 at any time outstanding (in each case determined without regard to the limitations set forth in clause (d) aboveany write-downs or write-offs);
(fg) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed in the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee case of the Subordinated Debt is subordinated to such Guarantee Guarantees by Loan Parties of the Obligations on terms no less favorable to the Lenders than the subordination provisions Indebtedness 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests Subsidiaries that secures the Obligations, where (1) after such sale or transferare not Loan Parties, such Restricted Subsidiary is no longer a Subsidiary Guarantees are entered into in the ordinary course of business and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance consistent with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrowerpast practices, and (iiB) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed guaranteed by any Loan Party shall be subject (together with outstanding intercompany loans permitted under the proviso to the limitations set forth in clause Section 6.04(f)) shall not exceed $40,000,000 at any time outstanding (d) above;
(g) 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 businessdetermined without regard to any write-downs or write-offs);
(h) Permitted Acquisitions; PROVIDED that investments in the sum form of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Swap Agreements permitted by Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,0006.07;
(i) any investments constituting minority equity interests in or loans to any Persons other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05than Subsidiaries of the Borrower not exceeding $25,000,000; and 95 90and
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed exceeding $25,000,000 5,000,000 at any time outstandingtime.
Appears in 2 contracts
Samples: Credit Agreement (Biovail Corp International), Credit Agreement (Biovail Corp International)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investmentsinvestments existing on the Effective Date and set forth on Schedule 6.04, to the extent such investments would not be permitted under any other clause of this Section;
(c) investments existing on in the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in of their respective Subsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in of a Foreign Subsidiaries set forth Subsidiary referred to in Section 5.12), ) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) that are not Loan Parties shall not exceed $25,000,000 1,000,000 in the aggregate at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(ed) loans or advances made by the Borrower to any Subsidiary of the Borrower (or to Holdings, but only as permitted by Section 6.07) and made by any Restricted Subsidiary of the Borrower to the Borrower or any other SubsidiarySubsidiary of the Borrower; PROVIDED provided that the amount of (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement and (ii) the amount of all such loans and advances by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (dc)(ii) above;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is not Loan Parties Guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause (dc)(ii) aboveabove and (ii) a Subsidiary that is not a Loan Party shall not Guarantee any Indebtedness of any Loan Party;
(gf) 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) promissory notes received from employees of Holdings and its Subsidiaries evidencing loans made for the purpose of permitting such employees to purchase capital stock of Holdings in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(h) Permitted Acquisitions; PROVIDED provided that (i) the consideration for each Permitted Acquisition shall consist solely of cash, shares of common stock of Holdings, the assumption of Indebtedness of the acquired Person or encumbering the acquired assets, Indebtedness referred to in clauses (vi) and (vii) of Section 6.01(a) or a combination thereof and (ii) the sum of all consideration (other than common Equity Interests of Holdings) paid Indebtedness so assumed or otherwise delivered resulting from Permitted Acquisitions (including Indebtedness referred to in clauses (vi) and (vii) of Section 6.01(a)) plus the cash consideration paid in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-than cash consideration but excluding the amount of received as Net Cash Proceeds from Prepayment Events described in the issuance by Holdings of additional shares of its common stock to finance Permitted Acquisitions, as contemplated by clause (ac)(ii) of the definition of “Prepayment Event”), minus the term Prepayment Event that are appliedbook value (determined, in accordance with Section 2.11(c)respect of each Permitted Acquisition, as of the date of consummation thereof) of all cash, cash equivalents, prepaid expenses, inventory and accounts receivable acquired pursuant to make such Permitted Acquisitions) 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, on a cumulative basis during any fiscal year of the term Borrower, when aggregated with the sum of this Agreementall Capital Expenditures during such fiscal year, $50,000,000the amount permitted for such fiscal year pursuant to Section 6.12;
(i) any investments loans or advances to employees in or the ordinary course of business; provided that the aggregate amount of all loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions advances permitted by Section 6.05; and 95 90this clause (i) shall not exceed $750,000 at any time outstanding;
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed exceeding $25,000,000 2,000,000 at any time outstanding;
(k) obligations of management to the Borrower in connection with split dollar life insurance policies; provided that the aggregate amount of all obligations permitted by this clause (k) shall not exceed $1,000,000 at any time outstanding;
(l) promissory notes contemplated by clauses (ii), (iii), (iv) and (v) of the proviso to Section 6.05; and
(m) investments incurred in connection with Deferred Compensation Obligations.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences evidence of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except:
(a) the Acquisition;
(b) Permitted Investments;
(cb) investments existing on the date hereof and set forth on Schedule 6.046.04 and any other investments from time to time not to exceed at any time outstanding an aggregate principal amount in excess of the Net Proceeds received from the disposition of investments permitted by this Section 6.04(b);
(dc) investments by the Borrower Company and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the applicable Pledge Agreement (subject to the limitations applicable to the pledge common stock of Equity Interests in a Foreign Subsidiaries set forth Subsidiary referred to in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries that are not Loan Parties (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 U.S.$20,000,000 (or its equivalent) at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) neither the aggregate amount Company nor any of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted the Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on will create or acquire any Subsidiary after the Effective Date) shall Date that is not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)Party;
(ed) loans or advances made by the Borrower Company to any Subsidiary and made by any Restricted Subsidiary to the Borrower Company or any other Subsidiary; PROVIDED provided that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (dc) above;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause (dc) above;
(gf) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;; and
(hg) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed received in connection withwith the sale, transfer, lease or resulting from, Permitted Acquisitions (including Indebtedness disposition of any acquired Persons outstanding at the time of the applicable Permitted Acquisition) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments asset in or loans to any other Person received as noncash consideration for sales, transfers, leases compliance with Sections 6.05 and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding6.06.
Appears in 1 contract
Samples: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower and the UK Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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 PersonPerson (all of 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 a business unit, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investments;
(c) investments Investments existing on the date hereof and set forth either in the capital stock of Borrower’s Subsidiaries or otherwise described on Schedule 6.04;
(dc) investments Investments made after the Effective Date by the Borrower in or to any Subsidiary and by any Subsidiary in or to the Borrower or in or to another Subsidiary; provided, that (i) the aggregate amount of such Investments by the Borrower and its Restricted Domestic Subsidiaries that are Loan Parties in Equity Interests in their respective Subsidiaries; PROVIDED or to Domestic Subsidiaries that (i) any such Equity Interests in a Subsidiary held by a are not Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Parties and Foreign Subsidiaries set forth other than the UK Borrower may not exceed $10,000,000 in Section 5.12)the aggregate, and (ii) the aggregate amount of investments such Investments by the Borrower and Domestic Subsidiaries that are Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on in the Effective Date) shall UK Borrower may not exceed $25,000,000 at any time outstanding 50,000,000 in the aggregate; provided, further, however, that no such limit shall apply to (it being understood that, for purposes of determining outstanding investments or be included in Unrestricted Subsidiaries, the sale or disposition calculation thereof) Investments by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) Borrower and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Domestic Subsidiaries that are Foreign Subsidiaries Loan Parties in the UK Borrower to the extent that after giving pro forma effect to such Investment (including all and any Indebtedness incurred to finance such investmentsInvestment), loans, advances and Guarantees existing on the Effective Date) shall Leverage Ratio would not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)1.0:1.0;
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED provided, that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Subsidiary Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause (dc) abovehereof;
(e) acquisitions (in one transaction or a series of transactions) by Loan Parties of any assets of any other Person constituting a business unit so long as after giving pro forma effect thereto (including any Indebtedness incurred to finance such acquisition), (i) the representations and warranties of the Borrower and UK Borrower set forth in this Agreement would be true and correct in all material respects on and as of the date of such acquisition, (ii) no Default shall have occurred and be continuing or result therefrom, (iii) the Borrower would be in pro forma compliance with each of the financial covenants set forth in Section 6.14 and 6.15 below, (iv) either (A) the Leverage Ratio would be less than 2.25:1.0 or (B) the aggregate amount of any such acquisitions made in any Fiscal Year when the Leverage Ratio would be equal to or greater than 2.25:1.0 does not exceed (x) $50,000,000 less (y) the aggregate amount of Restricted Payments made in such Fiscal Year pursuant to Section 6.06(d)(ii);
(f) loans, prepaid commissions and advances to officers, directors, employees and Affiliates in the ordinary course of business or otherwise approved by the Borrower’s board of directors; provided, that such loan, prepaid commission or advance is not made in violation of any requirement of law or regulation;
(g) investments notes payable received in connection with the bankruptcy or reorganization of, or of suppliers and customers and in settlement of delinquent accounts obligations of, and other disputes with, customers and suppliers; and
(h) Guarantees of operating leases and other obligations that do not constitute Indebtedness, in each case to the extent incurred in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (MPS Group Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiaries Subsidiary to, form any subsidiary after the Restatement Effective Date, or purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Restricted Subsidiary prior to such merger) any evidences of Indebtedness or 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 unitunit (whether through purchase of assets, merger or otherwise), except:
(a) investments in the Acquisitionform of cash or Permitted Investments;
(b) Permitted Investmentsinvestments in existence on the Restatement Effective Date and described in Schedule 6.04 and any modification, replacement, renewal or extension thereof to the extent not involving any additional investment;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower and its Restricted the Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED , provided that (iA) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Security Agreement (subject to the limitations applicable to the pledge of Equity Interests in of a Foreign Subsidiaries set forth Subsidiary or Foreign Subsidiary Holdco referred to in Section 5.12), 5.14) and (iiB) the aggregate amount of such investments by Loan Parties in, and loans and advances by in Subsidiaries that are not Loan Parties to, (together with outstanding intercompany loans permitted under clause (B) of the proviso to Section 6.04(d) and outstanding Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on permitted under the Effective Dateproviso to Section 6.04(e)) shall not exceed $25,000,000 2,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale each case determined without regard to any write-downs or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);
(ed) loans or advances made by the Borrower any Loan Party to any other Loan Party or any Subsidiary and made by any Restricted Subsidiary to the Borrower a Loan Party or any other Subsidiary; PROVIDED , provided that (A) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Security Agreement and (B) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in not Loan Parties (together with outstanding investments permitted under clause (dB) aboveof the proviso to Section 6.04(c) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $2,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with outstanding investments permitted under clause (B) to the limitations set forth in proviso to Section 6.04(c) and outstanding intercompany loans permitted under clause (dB) aboveof the proviso to Section 6.04(d)) shall not exceed $2,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(f) notes payable, or stock or other securities issued by Account Debtors to a Loan Party pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in the ordinary course of business, consistent with past practices;
(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 bankruptcy or reorganization of, or settlement disposition of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of businessassets permitted by Section 6.05;
(hj) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events investments constituting deposits described in clause clauses (ac) and (d) of the definition of the term Prepayment Event that are applied“Permitted Encumbrances”;
(k) Permitted Acquisitions;
(l) advances to officers, directors and employees of the Borrower or any Subsidiaries made in the ordinary course of business and consistent with past practices for travel, entertainment, relocation and similar purposes up to a maximum of $5,000,000 in the aggregate at any one time outstanding;
(m) investments consisting of extensions of credit in the nature of Accounts or notes receivable arising from the grant of trade credit in the ordinary course of business, and investments received in satisfaction or partial satisfaction thereof from financially troubled Account Debtors to the extent reasonably necessary in order to prevent or limit loss;
(n) the Borrower’s entry into (including payments of premiums in connection therewith), and the performance of obligations under, Permitted Call Spread Swap Agreements in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000their terms;
(io) any other investments in or loans (other than Acquisitions), so long as the Payment Condition shall be satisfied with respect to such investments; and
(p) other investments (other than Acquisitions) not permitted by any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by clause of this Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 5,000,000 in the aggregate at any time outstanding, so long as no Default or Event of Default has occurred and is continuing or would result after giving effect (including pro forma effect) to any such investment. The accrual of interest, the accretion of accreted value, the accretion of original issue discount, the accretion of liquidation preference and increases in the amount of investments or other obligations solely as a result of fluctuations in the exchange rate of currencies or increases in the value of such investments shall not be deemed to be an increase in the amount of any investment for purposes of this Section 6.04.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (TimkenSteel Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Restricted the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly Owned Subsidiary prior to such merger) any Equity Interests in or Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoingforgoing) 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, except:
(a) the Acquisition;
(b) Permitted Investments;
(cb) investments existing on the date hereof and set forth on Schedule 6.046.05(b), to the extent such investments would not be permitted under any other clause of this Section 6.05;
(dc) investments by the Parent Borrower and its Restricted the Subsidiaries in the Equity Interests in of their respective SubsidiariesSubsidiaries (that are Subsidiaries prior to such Investment); PROVIDED provided that (i) any such Equity Interests in a Subsidiary held owned by a Loan Party shall be pledged pursuant to secure the Obligations and (ii)(A) the amount of any such investment by a Loan Party in a Subsidiary that is not a Loan Party shall be automatically added to the Pledge Agreement Accumulated Investment Balance and (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (iiB) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) Accumulated Investment Balance shall not exceed $25,000,000 at 7,000,000 during any time outstanding (it being understood that, for purposes fiscal year of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)Parent Borrower;
(ed) loans or advances made by the Parent Borrower to any Subsidiary and made by any Restricted Subsidiary to the Parent Borrower or any other Subsidiary; PROVIDED provided (i) that the amount of any such loans and advances made by a Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, Party shall be subject evidenced by a promissory note pledged to secure the Obligations and (ii)(A) the amount of any such loan or advance by a Loan Party to a Subsidiary that is not a Loan Party shall be automatically added to the limitations set forth in clause Accumulated Investment Balance and (dB) abovethe Accumulated Investment Balance shall not exceed $7,000,000 during any fiscal year of the Parent Borrower;
(fe) Guarantees constituting by the Parent Borrower of Indebtedness permitted and other obligations of any Subsidiary or any Joint Venture and Guarantees by Section 6.01any Subsidiary of Indebtedness or other obligations of the Parent Borrower or any Subsidiary or any Joint Venture; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Senior First Lien Notes, Senior Second Lien Notes or Senior Subordinated Debt Notes unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, and (B) such with respect to any Guarantee of the Senior Subordinated Debt Notes, such Guarantee is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Senior Subordinated Debt Notes, (ii) any such Guarantee constituting Indebtedness is permitted by Section 6.01 and (Ciii) such in the event of any Guarantee by a Loan Party of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result Indebtedness of a foreclosure of the Lien on such Equity Interests Person that secures the Obligationsis not a Loan Party, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (iiA) the aggregate principal amount of such Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject automatically added to the limitations set forth in clause Accumulated Investment Balance and (dB) abovethe Accumulated Investment Balance shall not exceed $7,000,000 during any fiscal year of the Parent Borrower;
(gf) 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) [Intentionally Omitted];
(h) Permitted Acquisitions; PROVIDED [Intentionally Omitted];
(i) payroll, travel and similar advances to cover matters that are expected at the sum time of all consideration such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(other than common Equity Interests of Holdingsj) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount investments of any Indebtedness issued as deferred purchase price and Person existing at the fair market value of time such Person becomes a Subsidiary or at the time such Person merges or consolidates with the Parent Borrower or any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are appliedSubsidiaries, in accordance either case in compliance with Section 2.11(c), to make the terms of this Agreement; provided that such Permitted Acquisitions) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed investments were not made by such Person in connection with, or resulting fromin anticipation or contemplation of, Permitted Acquisitions (including Indebtedness of any acquired Persons outstanding at the time of the applicable Permitted Acquisition) shall not exceed, on such Person becoming a cumulative basis during the term of this Agreement, $50,000,000Subsidiary or such merger or consolidation;
(k) Swap Agreements entered into in compliance with Section 6.08;
(l) other loans, advances and investments; provided that (i) the amount of any investments in such loan, advance or loans investment made pursuant to this clause (l) shall be automatically added to the Accumulated Investment Balance and (ii) the Accumulated Investment Balance shall not exceed $7,000,000 during any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05fiscal year of the Parent Borrower; and 95 90and
(jm) any notes or other investments in, advances or loans to or Guarantees evidences of Indebtedness ofacquired as consideration in connection with a sale, transfer, lease or other disposition of any Person in an aggregate amount not to exceed $25,000,000 at asset by the Parent Borrower or any time outstandingof the Subsidiaries.
Appears in 1 contract
Samples: Credit Agreement (Pliant Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Loan Parties will not, and will not permit any of its Restricted their Subsidiaries to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly Owned Subsidiary prior to such merger) any 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 unitunit (each of the foregoing, an “Investment” and collectively, “Investments”), except:
(a) the Acquisition;
(bi) Permitted Investments;
(cii) investments Investments existing on the date hereof Effective Date and set forth on Schedule 6.04;
(diii) investments Investments (x) by or among the Parent Guarantors, the Borrowers and the Subsidiary Loan Parties in Subsidiary Loan Parties and by the Borrower and its Restricted Subsidiaries Parent Guarantors in Equity Interests in their respective Subsidiariesthe Borrowers; PROVIDED provided that (i) any such Equity Interests in Investment (other than intercompany Indebtedness held by a Non-U.S. Subsidiary which shall be pledged only if and to the extent required by this Agreement) held by a Loan Party shall be pledged pursuant to the Pledge Agreement applicable Security Document or (subject y) by a Subsidiary Loan Party in a Parent Guarantor or a Borrower in the form of intercompany indebtedness only, provided that such investment shall be pledged pursuant to the limitations applicable Security Document if and to the pledge extent required by this Agreement;
(iv) Investments by (A) the Loan Parties in Non-Subsidiary Loan Parties and (B) Non-Subsidiary Loan Parties in other Non-Subsidiary Loan Parties; provided that such Investments are made in the ordinary course of Equity Interests business; provided, further that in Foreign Subsidiaries set forth in Section 5.12), the case of clause (iiA) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) Investments shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary 150.0 million; provided that such amount shall be deemed increased to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) $200.0 million if and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that so long as Leverage Condition 3 is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)satisfied;
(ev) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees Investments constituting Indebtedness permitted by Section 6.01; PROVIDED that 6.01(a)(xi), (ixii), (xiii) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless or (Axxiv);
(vi) such Restricted Subsidiary also has Guaranteed the Obligations Guarantees of Indebtedness permitted by Section 6.01(a)(i), (ii), (iii), (iv), (vi), (xiii), (xiv), (xvi), (xvii), (xviii), (xix), (xx), (xxi), (xxii), (xxiii) or (xxvi) and Guarantees pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) aboveStandard Securitization Undertakings;
(gvii) investments 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;
(hviii) Permitted Acquisitions; PROVIDED that loans and advances to employees of Crown Holdings or its Subsidiaries in the sum ordinary course of all consideration business (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price including, without limitation, for travel, entertainment and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(crelocation expenses), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(iix) any investments in or loans Investments to any other Person received as noncash the extent that the consideration paid by Crown Holdings and its Subsidiaries is common stock of Crown Holdings;
(x) Investments representing consideration (including by way of capital contribution) for sales, transfers, leases asset sales and other dispositions permitted by Section 6.05; and 95 90;
(jxi) Permitted Acquisitions; and
(xii) other loans, advances and Investments (including, without limitation, in joint ventures) not in excess of $130.0 million at any other investments intime outstanding prior to satisfaction of Leverage Condition 3 and $150.0 million thereafter (without giving effect to write-downs, but after giving effect to loans, advances or loans to or Guarantees of Indebtedness of, any Person Investments returned in an aggregate amount not to exceed $25,000,000 at any time outstandingcash).
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted the Cargill Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Cargill Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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) make any assets of any other Person constituting a business unitAcquisition, except:
(a) the Acquisition;
(b) Permitted Investments;
(cb) investments existing on the date hereof and set forth on Schedule 6.04;
(dc) investments by the Borrower and its Restricted Cargill Subsidiaries in Equity Interests in their respective Subsidiariesany Cargill Subsidiary; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party (other than any such Equity Interests of an Excluded Cargill Subsidiary) shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of voting Equity Interests of a Foreign Subsidiary referred to in Foreign Subsidiaries set forth in Section 5.12), clause (b) of the definition of “Collateral and Guarantee Requirement”) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Cargill Subsidiaries that are not Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including excluding (A) all such investments, loans, loans and advances and Guarantees existing on the Effective Date, and extensions, refinancings, restatements or modifications thereof that do not increase the aggregate amount thereof, (B) loans and advances made in cash that are evidenced by promissory notes pledged pursuant to the Pledge Agreement, provided that the proceeds of such loans and advances are not used to finance an acquisition or other investment not permitted by this Section, and (C) cash investments in Equity Interests in Cargill Subsidiaries that are not Loan Parties made substantially simultaneously with or promptly following receipt of, and in an aggregate amount not exceeding the amount of, a cash distribution received by a Loan Party in respect of any Equity Interests in a Cargill Subsidiary that is not a Loan Party) shall not exceed $25,000,000 15,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments that compliance with the limitation set forth in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary this clause shall be deemed determined based on the amount of cash or fair market value of other assets invested as of the date of investment, without giving effect to reduce investments any fluctuations in Unrestricted Subsidiaries by an amount equal to the Net Proceeds value of such sale investment not attributable to dividends, distributions, repayments or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionredemptions);
(ed) loans or advances made by the Borrower to any Cargill Subsidiary and made by any Restricted Cargill Subsidiary to the Borrower or any other Cargill Subsidiary; PROVIDED provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement and (ii) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Cargill Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (dclause(c) above;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) a Restricted Cargill Subsidiary that is not a Loan Party shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreementany Indebtedness or other obligations of any Loan Party, (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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any a Subsidiary Loan Party shall be subject to not Guarantee any Indebtedness or other obligations of a Subsidiary that is not a Loan Party (but the limitations set forth in clause (d) aboveBorrower may Guarantee any Indebtedness of any Cargill Subsidiary);
(gf) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers;
(g) investments in joint ventures not exceeding $25,000,000 in the aggregate for all such investments made on or after the Effective Date; provided that (i) the documentation governing any such joint venture does not contain a restriction on distributions to the Borrower or any Cargill Subsidiary and (ii) each such joint venture is engaged only in a business in which the Borrower and the Cargill Subsidiaries would be permitted to engage as provided in Section 6.03(b);
(h) investments received as non-cash consideration in respect of sales, transfers or dispositions permitted by Section 6.05;
(i) accounts receivable arising in each case the ordinary course of business of the Borrower and the Cargill Subsidiaries;
(j) Swap Agreements permitted under Section 6.07;
(k) loans and advances to officers and employees of the Borrower or the Cargill Subsidiaries consistent with the prior practices of the Cargill Subsidiaries;
(l) Guarantees by the Borrower of Swap Agreements and other obligations incurred by any Cargill Subsidiary in the ordinary course of business;
(hm) Permitted Acquisitions; PROVIDED Guarantees by any Cargill Subsidiary that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount is a Foreign Subsidiary of any Indebtedness issued as deferred purchase price and the fair market value obligations of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;its Subsidiaries; and
(in) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person made after the Effective Date in an aggregate amount not to exceed $25,000,000 at any time outstanding5,000,000.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Neither Holdings nor the Parent Borrower will, nor will not, and will not they permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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 hold any loans or advances to, Guarantee any obligations of, or make or permit to exist hold 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investmentsinvestments existing on the date hereof;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower Holdings and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(ed) loans or advances made by the Borrower Holdings to any Subsidiary and made by any Restricted Subsidiary to the Borrower Holdings or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries;
(e) Guarantees, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth of Section 6.01 in clause (d) abovethe case of Indebtedness of Subsidiaries that are not Guarantee Parties;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;; and
(hg) Permitted Acquisitionsother investments; PROVIDED provided that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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 exceedand after giving effect to any such investment, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments Holdings and the Parent Borrower will be in or loans to any other Person received compliance on a pro forma basis with the covenants contained in Sections 6.07 and 6.08, recomputed as noncash consideration of the last day of the most recently ended fiscal quarter of the Parent Borrower for sales, transfers, leases which financial statements are available as if such investment and other dispositions permitted by Section 6.05; and 95 90
(j) any all other investments in, advances or loans to or Guarantees made in reliance on this clause (g) had occurred on the first day of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstandingeach relevant period for testing such compliance and (ii) no Default shall have occurred and be continuing.
Appears in 1 contract
Samples: Credit Agreement (J C Penney Co Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Each of Holdings and the Borrower will not, and each, as applicable, will not permit any of its Restricted the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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, except:
(a) the Acquisition;
(b) Permitted Investments;
(cb) investments existing on the date hereof and set forth on Schedule 6.04;
(dc) investments by Holdings, the Borrower and its Restricted the other Subsidiaries in Equity Interests in the Capital Stock of their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party Capital Stock shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge common stock of Equity Interests in a Foreign Subsidiaries set forth Subsidiary referred to in Section 5.12), ) and (ii) the aggregate amount of investments by Holdings, the Borrower and the other Subsidiaries in Subsidiaries that are not Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 5,000,000 in the aggregate at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(ed) loans or advances made by the Borrower to any other Subsidiary and made by any Restricted Subsidiary other than the Borrower to the Borrower or any other Subsidiary; PROVIDED that the amount of (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement and (ii) the amount of all such loans and advances by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to not exceed $5,000,000 in the limitations set forth in clause (d) aboveaggregate at any time outstanding;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that the amount of Indebtedness that is (i) a Restricted Subsidiary shall outstanding with respect to Subsidiaries that are not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, Loan Parties and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject not exceed $5,000,000 in the aggregate at any time outstanding;
(f) loans to employees of Holdings, the limitations set forth Borrower and the other Subsidiaries in clause (d) abovetheir capacity as such, in an aggregate principal amount not to exceed $2,000,000 at any time outstanding;
(g) Hedging Agreements permitted under Section 6.07;
(h) investments in Joint Ventures in an aggregate amount not to exceed $40,000,000 at any time outstanding, PROVIDED that the aggregate amount of cash investments pursuant to this clause (h) shall not exceed $20,000,000 at any time outstanding;
(i) (i) non-recourse loans to employees the proceeds of which shall be used to purchase common stock of Holdings and (ii) loans to management shareholders the proceeds of which shall be used to purchase common stock of Holdings; PROVIDED that all loans under this clause (i) shall not exceed $7,500,000 in the aggregate at any time outstanding;
(j) 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;
(hk) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;and
(il) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 5,000,000 at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Endo Pharmaceuticals Holdings Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the Acquisition;
(b) Permitted Investments;
(c) investments existing on the date hereof and set forth on Schedule 6.046.05;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to common stock of a Foreign Subsidiary referred to in the pledge definition of Equity Interests in Foreign Subsidiaries set forth "Collateral and Guarantee Requirement" in Section 5.12), 1.01) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, to and Guarantees by Loan Parties of Indebtedness of, Unrestricted of Subsidiaries that are not Loan Parties (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 500,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(e) loans or advances made by the Borrower to any Subsidiary and or made by any Restricted 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 Pledge Agreement and (ii) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt Notes unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt Notes is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt Notes and (C) such Guarantee of the Subordinated Debt Notes provides for the release and termination thereof, without action by any party, upon the sale or transfer any release and termination of such Guarantee of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitionsloans and advances made by the Borrower and the Subsidiaries in the ordinary course of business consistent with past practices to their respective employees for education-related expenses (including tuition and room and board), moving, travel and emergency expenses and other similar expenses, so long as the aggregate principal amount thereof at any one time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $2,500,000; PROVIDED that and
(i) acquisitions by the sum Borrower or any Subsidiary of all or substantially all of the assets of, or all the Equity Interests in, a Person or division or line of business of a Person if (i) each Subsidiary, if any, formed for the purpose of or resulting from such acquisition shall be a Wholly Owned Subsidiary and a Loan Party, (ii) the ownership by the Borrower or any Subsidiary of such Person or business is consistent with the limitations of Section 6.03, (iii) no Default or Event of Default results from the making of any such acquisition, (iv) prior to the making of any such acquisition the Borrower shall have delivered to the Administrative Agent calculations demonstrating pro forma compliance with the covenants contained in Sections 6.12, 6.13, 6.14 and 6.15 as of the end of and for the most recent period of four fiscal quarters for which financial statements shall have been delivered pursuant to Section 5.03(a) or (b), giving effect to such acquisition, any related incurrence or repayment of Indebtedness and the terms of any employment agreement entered into in connection therewith as if they had occurred at the beginning of such period and (v) the aggregate consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed Permitted Seller Notes issued and Permitted Earn-Out Obligations incurred) paid for acquisitions permitted under this clause (i) after the Effective Date shall not exceed $150,000,000; PROVIDED, that so long as the conditions in connection withclause (iv) of this paragraph are satisfied and the Leverage Ratio (calculated as set forth in clause (iv) of this paragraph) does not exceed 2.50 to 1.00, or resulting from, Permitted Acquisitions the restriction set forth in this clause (including Indebtedness of any acquired Persons outstanding at the time of the applicable Permitted Acquisitionv) shall not exceedapply. Notwithstanding the foregoing, on a cumulative basis during the term of Borrower will not, and will not permit any Subsidiary to, enter into any transaction contemplated by this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 unless such transaction is expressly permitted under the Subordinated Note Documents at any time outstandingsuch time.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any optionoptions, warrant warrants or other right rights 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 referred to as "Investments"), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting that constitute a business unitunit or that are substantial in relation to the Company and the Subsidiaries taken as a whole, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsInvestments existing on the Effective Date and set forth on Schedule 6.06;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments Investments by the Borrower Company and its Restricted the Subsidiaries in Equity Interests in of their respective Subsidiaries (including capital contributions to such Subsidiaries); PROVIDED provided that (i) any such Equity Interests in a Subsidiary Investments held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject Security Documents to the limitations applicable extent required in order for the Collateral and Guarantee Requirement to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), be satisfied and (ii) the aggregate amount of investments Investments by Loan Parties in, and loans and advances by in Subsidiaries that are not Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees Investments existing on the Effective Datedate hereof) shall not exceed $25,000,000 1,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(ed) loans or advances made by the Borrower Company to any Subsidiary and made by any Restricted Subsidiary to the Borrower Company or any other Subsidiary, and Guarantees by the Company of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Company or any other Subsidiary; PROVIDED provided that the amount aggregate amount, without duplication, of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiariesnot Loan Parties, and all such Guarantees by Loan Parties of the Indebtedness of Subsidiaries that are not Loan Parties, shall be subject not exceed $5,000,000 at any time outstanding;
(e) the Company may make any Permitted Acquisition, provided that the Company complies, and causes any acquired entity to comply, with the applicable provisions of Section 5.11 and the Security Documents with respect to the limitations set forth in clause (d) abovePerson or assets so acquired;
(f) Guarantees (other than Guarantees by the Company or any Subsidiary of Indebtedness of the Company or any Subsidiary) constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless Series B Notes (A) such Restricted Subsidiary also has Guaranteed as defined in the Obligations pursuant to the Guarantee Securities Purchase 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above);
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitionsthe Company or its permitted assigns may consummate the Lab Acquisition; PROVIDED provided that promptly following the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including completion thereof, the principal amount of any Indebtedness issued Collateral and Guarantee Requirement shall be satisfied as deferred purchase price to the Acquisition Sub and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described assets acquired in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000transaction;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted the Company may purchase Equity Interests of Acquisition Sub that are owned by Section 6.05; and 95 90the management of the Health Alliance of Greater Cincinnati;
(j) the Company may consummate the RapidMed Acquisition; provided that promptly following the completion thereof, the Collateral and Guarantee Requirement shall be satisfied as to the assets acquired in such transaction;
(k) subject to the proviso to paragraph (l), loans or advances less than $100,000 made by the Company or any other investments in, Subsidiary in the ordinary course of business; and
(i) loans or advances or made by any Loan Party to an employee of such Loan Party; provided that the aggregate loans to or Guarantees of Indebtedness of, any Person in an aggregate amount and advances under this paragraph (l) shall not to exceed $25,000,000 at any time outstanding500,000.
Appears in 1 contract
Samples: Credit Agreement (Labone Inc/)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and nor will not it permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly-Owned Subsidiary prior to such merger) any 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsAcquisitions;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments, loans, advances and guarantees of and by the Liberty Group existing on the First Funding Date, which investments have not been procured by or approved by Borrower or its Subsidiaries other than the Liberty Group;
(e) investments by the Borrower and its Restricted the Subsidiaries in Equity Interests in of their respective Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Collateral Agreement or, in the case of NAL, pursuant to a Foreign Pledge Agreement (in each case, subject to the limitations applicable to the pledge of Equity Interests of a Foreign Subsidiary and NAL referred to in Foreign Subsidiaries set forth in Section 5.12the definition of the term “Collateral and Guarantee Requirement”), (ii) the aggregate amount of investments made pursuant to this clause (ii) by Loan Parties in, in Subsidiaries (other than the Broker Dealer Subsidiaries and loans and advances by the RIE) that are not Loan Parties to, (together with outstanding intercompany loans permitted under clause (ii) to the proviso to paragraph (f) of this Section and outstanding Guarantees by Loan Parties permitted under the proviso to paragraph (g) of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Datethis Section) shall not exceed $25,000,000 5,000,000 at any time outstanding (it being understood thatin each case determined without regard to any write-downs or write-offs), for purposes of determining outstanding except that NAL shall be permitted to make investments in Unrestricted SubsidiariesLiberty to fund all or a portion of a Liberty Bond Redemption, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments any investment made pursuant to this clause (iii) by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) in any Broker Dealer Subsidiary shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary amount that is a Foreign required at the time of such investment to cause such Broker Dealer Subsidiary’s capital to be above the highest level at which dividends by such Broker Dealer Subsidiary may be restricted, other activities undertaken by such Broker Dealer Subsidiary may be limited or other regulatory actions with respect to such Broker Dealer Subsidiary may be taken, in each case by applicable Governmental Authorities based upon such capital, plus amounts not to exceed $5,000,000 in any fiscal year and (iv) the aggregate amount of any investment made pursuant to this clause (iv) by Loan Parties, directly or indirectly, in the RIE shall not exceed the amount that is required at the time of such investment to cause the RIE’s capital to be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries above the highest level at which dividends by an amount equal the RIE may be restricted, other activities undertaken by the RIE may be limited or other regulatory actions with respect to the Net Proceeds of RIE may be taken, in each case by applicable Governmental Authorities based upon such sale or disposition)capital;
(ef) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED , 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, (ii) the amount of such loans and advances made pursuant to this clause (ii) by Loan Parties to Unrestricted Subsidiaries, Subsidiaries (other than the Broker Dealer Subsidiaries or to Restricted Subsidiaries the RIE) that are Foreign Subsidiariesnot Loan Parties (together with investments permitted under clause (i) of the proviso to paragraph (e) of this Section and outstanding Guarantees permitted under the proviso to paragraph (g) of this Section) shall not exceed $5,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs), except that NAL shall be subject permitted to make loans or advances to Liberty to fund all or a portion of a Liberty Bond Redemption, (iii) the amount of any loan or advance made pursuant to this clause (iii) by Loan Parties to any Broker Dealer Subsidiary shall not exceed the amount that is required at the time of such loan or advance to cause such Broker Dealer Subsidiary’s capital to be above the highest level at which dividends by such Broker Dealer Subsidiary may be restricted, other activities undertaken by such Broker Dealer Subsidiary may be limited or other regulatory actions with respect to such Broker Dealer Subsidiary may be taken, in each case by applicable Governmental Authorities based upon such capital, plus amounts not to exceed $5,000,000 in any fiscal year and (iv) the amount of any loan or advance made pursuant to this clause (iv) by Loan Parties, directly or indirectly, to the limitations set forth RIE shall not exceed the amount that is required at the time of such loan or advance to cause the RIE’s capital to be above the highest level at which dividends by the RIE may be restricted, other activities undertaken by the RIE may be limited or other regulatory actions with respect to the RIE may be taken, in clause (d) aboveeach case by applicable Governmental Authorities based upon such capital;
(fg) Guarantees constituting of Indebtedness of the Borrower or any Subsidiary that are permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with investments permitted under clause (ii) of the proviso to paragraph (e) of this Section and intercompany loans permitted under clause (ii) to the limitations set forth proviso to paragraph (f) of this Section) shall not exceed $5,000,000 at any time outstanding (in clause (d) aboveeach case determined without regard to any write-downs or write-offs);
(gh) 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 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 aggregate outstanding at any time (determined without regard to any write-downs or write-offs of such loans or advances);
(i) 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;
(j) 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;
(hk) Permitted Acquisitions; PROVIDED that investments in the sum form of all consideration Swap Agreements permitted by Section 6.07;
(other than common Equity Interests l) investments of Holdings) paid any Person existing at the time such Person becomes a Subsidiary or otherwise delivered consolidates or merges with the Borrower or any Subsidiary (including in connection with a Permitted Acquisitions Acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger;
(including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds m) investments resulting from Prepayment Events pledges or deposits described in clause (ac) or (d) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such “Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000Encumbrance”;
(in) investments received in connection with the disposition of any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions asset permitted by Section 6.05; and 95 90;
(jo) 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;
(p) the Liberty Equity Acquisitions and the Liberty Transaction;
(q) investments in the Depository Trust Clearing Corporation to the extent required by applicable law;
(r) 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, loan or advance is made and including all related commitments for future investments, loans or advances (and the principal amount of any Indebtedness that is assumed or otherwise incurred in connection with such investment, loan or advance), not exceeding $15,000,000 in the case of any single such investment, or $50,000,000 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 in, advances or loans (which amount shall not exceed the amount of such investment valued at cost at the time such investment was made);
(s) investments in TRF not to or Guarantees exceed $10,000,000 since the First Funding Date;
(t) investments made in connection with the Specified Liberty Restructuring Transactions made within twenty-four months of Indebtedness of, any Person the First Funding Date;
(u) additional investments in Liberty and its Subsidiaries in an aggregate amount not to exceed (x) $25,000,000 100.0 million per calendar year and (y) $200.0 million at any time outstandingoutstanding (provided that for purposes of determining compliance with this clause (y), the amount of such investments in Liberty and its Subsidiaries deemed outstanding shall be reduced by the amount of any dividends, distributions or other return on capital received by the Borrower and its wholly-owned Domestic Subsidiaries with respect to such investments (or, in the case of an investment that is a loan or advance, any principal repayment of such loan or advance)); and
(v) investments resulting from the Specified Subsidiary Restructuring Transactions; provided that this Section 6.04 shall not prohibit any repurchase of Indebtedness or Equity Interests of the Borrower by the Borrower, or any repurchase of Equity Interests or Indebtedness of any Subsidiary by such Subsidiary, in each case to the extent such repurchase is otherwise permitted by this Agreement.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Nasdaq Stock Market Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Restricted Subsidiary prior to such merger) any Equity Interests Interest 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 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 assets of, or assets constituting a division, unit or line of business of, any other Person constituting a business unit(each of the foregoing, an “Investment”), except:
(a) Investments in connection with the AcquisitionTransactions;
(b) Permitted InvestmentsCash Equivalents;
(c) investments Investments existing on the date hereof and set forth listed on Schedule 6.04;
(d) investments Investments by the Borrower and its Restricted Subsidiaries subsidiaries in Equity Interests in their respective Subsidiariessubsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary Interest held by a Loan Party shall be pledged pursuant to the Pledge Security Agreement as required to satisfy clause (subject to b) of the limitations applicable to the pledge definition of Equity Interests in Foreign Subsidiaries set forth in Section 5.12)“Collateral and Guarantee Requirement”, and (ii) the aggregate amount of investments such Investments by Loan Collateral Support Parties in, and in Equity Interests in Subsidiaries that are not Collateral Support Parties made after the Effective Date in reliance on this clause (d) shall not exceed (together with (x) any loans and advances by Loan Collateral Support Parties to, to Subsidiaries that are not Collateral Support Parties made in reliance on clause (e) below and (y) any Guarantees by Loan Collateral Support Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes or other obligations of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries not Collateral Support Parties made in reliance on clause (including all such investments, loans, advances f) below) $75,000,000 (in each case determined at the time made and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at without regard to any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale subsequent write-downs or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED provided that the amount of such loans and advances made in reliance on this clause (e) after the Effective Date by Loan Collateral Support Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Collateral Support Parties shall be subject to the limitations limitation set forth in clause (ii) of the proviso in clause (d) above;
(f) (x) Guarantees constituting Indebtedness permitted by Section 6.016.01 and (y) guarantees provided in the ordinary course of business of obligations of any Wireline Company (other than Indebtedness) under operating leases and similar contracts; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) any Person providing any 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance Indebtedness shall have complied with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the BorrowerSection 5.10 with respect thereto, and (ii) the aggregate principal amount of Indebtedness and other obligations of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Collateral Support Parties that is Guaranteed by any Loan Party Collateral Support Parties shall be subject to the limitations limitation set forth in clause (ii) of the proviso in clause (d) above;
(g) investments received any Investment acquired by any Wireline Company (i) in exchange for any other Investment or accounts receivable held by such Wireline Company in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the bankruptcy issuer of such other Investment or reorganization ofaccounts receivable or (ii) as a result of a foreclosure by any Wireline Company with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(h) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or settlement purchases of delinquent accounts and disputes with, customers and supplierscontract rights or licenses or leases of intellectual property, in each case in the ordinary course of business;
(hi) Investments that constitute Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Asset Exchanges and Permitted Acquisitions (including the principal amount any xxxx xxxxxxx money deposits required in connection with any Permitted Acquisition);
(j) loans or advances to employees of any Indebtedness issued Wireline Company not exceeding $5,000,000 in the aggregate outstanding at any time;
(k) commission, payroll, travel and similar advances to officers and employees to cover matters that are expected at the time of such advances ultimately to be treated as deferred purchase price and expenses of the fair market value Wireline Companies in accordance with GAAP;
(l) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(m) Investments in the form of Swap Agreements permitted by Section 6.07;
(n) Investments of any other non-cash consideration but excluding Person existing at the amount 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 Net Proceeds such Person becoming a Subsidiary or of such consolidation or merger;
(o) Investments resulting from Prepayment Events pledges or deposits described in clause (ab) or (c) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such “Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000Encumbrance”;
(ip) Investments received in connection with the disposition of any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions asset permitted by Section 6.05; and 95 90;
(jq) advances to customers or suppliers in the ordinary course of business that are, in conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the balance sheet of the Borrower or any other investments of its Subsidiaries and endorsements for collection or deposit arising in the ordinary course of business;
(r) Investments arising from any transaction permitted by Section 6.08;
(s) Investments existing on the date hereof in non-voting participation certificates of any Lender and additional Investments made after the Closing Date in any such non-voting participation certificates (including accruals on such certificates made by such Lender in accordance with its bylaws and capital plan); and
(t) so long as no Event of Default of the type described in paragraph (a), (b), (h) or (i) of Article 7 has occurred and is continuing or would result therefrom, additional Investments in any Person (provided that any such Person is either (i) not an Affiliate of the Borrower or (ii) is an Affiliate of the Borrower (A) solely because the Borrower, directly or indirectly, owns Equity Interests in, advances or loans to controls, such Person or Guarantees of Indebtedness of, any Person (B) engaged in bona fide business operations and is an Affiliate solely because it is under common control with the Borrower) having an aggregate amount Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (t) since the Effective Date and then outstanding not to exceed the sum (calculated as of the date of such Investment was made after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (i) Available Distributable Cash plus (ii) Available Equity Proceeds plus (iii) the greater of (x) $25,000,000 150,000,000 and (y) 2% of Total Assets plus (iv) the aggregate amount of cash equal to the net reduction in Investments made pursuant to this clause (t) in any Person since the Effective Date resulting from repayments of loans or advances, or other transfers of assets, in each case to the Borrower or any Subsidiary or from the net proceeds received in cash, from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Consolidated Adjusted Net Income); provided that any Investment made pursuant to this clause (t) in any Person that is not a Wireline Company at any the time outstandingsuch Investment is made may, if such Person thereafter becomes a Wireline Company, from and after such date be deemed to have been made pursuant to clause (d), (e) or (f)(ii), as applicable, and not pursuant to this clause (t).
Appears in 1 contract
Samples: Credit Agreement (Windstream Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The None of the Parent, the Borrower or any other Subsidiary will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or hold, acquire (including pursuant to any merger or consolidation with any Person that was not a wholly wholly-owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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, 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 unitInvestment, except:
(a) the AcquisitionFormation Transactions;
(b) Investments constituting Permitted InvestmentsInvestments at the time such Investments are made;
(c) investments Investments (i) existing on the date hereof Effective Date in Subsidiaries, (ii) Investments existing on the Effective Date or made in connection with the Formation Transactions and set forth on Schedule 6.046.04 and (iii) in the case of each of clauses (i) and (ii), any modification, renewal or extension thereof, so long as the amount of each such Investment is not increased at any time above the amount of such Investment under clause (i) or (ii), as applicable, existing on the Effective Date, except pursuant to the terms of any such Investment under clause (ii) existing as of the Effective Date and set forth on Schedule 6.04 or as otherwise permitted by this Section 6.04 and the terms of any Investment are not otherwise modified from the terms that are in effect on the Effective Date in a manner that is materially adverse to the Lenders;
(d) investments Investments (including pursuant to any merger or consolidation) by the Parent, the Borrower and its Restricted the other Subsidiaries in Equity Interests in their respective Subsidiariessubsidiaries; PROVIDED provided that (i) such subsidiaries are Subsidiaries prior to such investments, (ii) any such Investment in Equity Interests in of a Subsidiary held by a Loan Party shall be pledged pursuant pledged, to the Pledge Agreement extent required, in accordance with the requirements of the definition of the term “Collateral and Guarantee Requirement” and (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (iiiii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Unrestricted Subsidiaries that are not Loan Parties (including excluding all such investments, loans, advances and Guarantees existing on the Effective DateDate and permitted by clause (c) above) shall not exceed $25,000,000 (after taking account of amounts charged to this clause (d) as provided by clauses (e) and (f) below and Section 6.05(b)) at any time outstanding the greater of (x) $150,000,000 and (y) an amount equal to 10% of the Gross Asset Value of the Parent and the Subsidiaries as derived from the consolidated financial statements most recently delivered pursuant to Section 5.01(a) or (b) hereof on or prior to the time any such Investment is made (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, that any Investments permitted by this clause (d) at the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall time made will not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment thereafter result in a Restricted Subsidiary that is violation of this clause (d) as a Foreign Subsidiary shall be deemed to reduce investments result of subsequent changes in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionGross Asset Value);
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to Parent, the Borrower or any other Subsidiary to any Subsidiary; PROVIDED provided that (i) the Indebtedness resulting therefrom is permitted by Section 6.01(a)(iv) and (ii) the amount of such loans and advances made by the Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (d) above;
(f) Guarantees constituting by the Parent, the Borrower or any other Subsidiary of Indebtedness permitted by Section 6.01or other obligations of the Parent, the Borrower or any other Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee any Permitted Senior Unsecured Indebtedness, any Permitted Subordinated Indebtedness or the Subordinated Debt Senior Notes (or any Refinancing Indebtedness in respect of any of the foregoing) unless (A) such Restricted Subsidiary also has Guaranteed the Secured Obligations pursuant to the Guarantee Collateral Agreement, (B) such Guarantee of the Senior Notes, any Permitted Senior Unsecured Indebtedness and any Permitted Subordinated Debt is subordinated to such Guarantee Indebtedness (or of Refinancing Indebtedness in respect of any of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (Cforegoing) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any partyPerson, upon the sale or transfer any release and termination of such Guarantee of the Equity Interests Secured Obligations and (C) such Guarantee of such Restricted Subsidiary as a result of a foreclosure Permitted Subordinated Indebtedness is subordinated to the Loan Document Obligations on terms no less favorable to the Lenders than those of the Lien on such Equity Interests that secures the ObligationsPermitted Subordinated Indebtedness, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) a Subsidiary that has not Guaranteed the Secured Obligations pursuant to the Collateral Agreement shall not Guarantee any Indebtedness of any Loan Party and (iii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party (other than Guarantees of operating leases entered into in the ordinary course of business) shall be subject to the limitations limitation set forth in clause (d) above;
(g) investments Investments to the extent that payment for such Investments is made solely with Qualified Equity Interests of the Parent or the Borrower or from net proceeds from the issuance thereof, provided such Investments are made within 180 days of the date of receipt of such net proceeds;
(h) Investments received (i) 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;
business or (hii) Permitted Acquisitions; PROVIDED that the sum upon foreclosure (or transfer of all consideration (title in lieu of foreclosure) with respect to any secured Investment in a Person other than common Equity Interests of Holdings) paid the Borrower or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price a Subsidiary and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are appliedthat, in accordance with Section 2.11(ceach case, was made without contemplation of such foreclosure (or transfer of title in lieu of foreclosure), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received Investments made as a result of the receipt of noncash consideration for salesfrom a sale, transferstransfer, leases and lease or other dispositions permitted by disposition, or an exclusive license, of any asset in compliance with Section 6.05; and 95 90;
(j) Investments by the Parent, the Borrower or any other investments inSubsidiary that result solely from the receipt by the Parent, advances the Borrower or loans to such Subsidiary from any of its subsidiaries of a dividend or Guarantees other Restricted Payment in the form of Equity Interests, evidences of Indebtedness ofor other securities (but not any additions thereto made after the date of the receipt thereof);
(k) Investments in the form of Hedging Agreements permitted under Section 6.07;
(l) payroll, travel, business entertainment and similar advances to officers, directors, employees and consultants of the Parent or any Person Subsidiary to cover matters that are expected at the time of such advances to be treated as expenses of the Parent or such Subsidiary for accounting purposes and that are made in an the ordinary course of business;
(m) Investments consisting of extensions of trade credit in the ordinary course of business;
(n) 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;
(o) loans or advances to officers, directors and employees of the Parent or any Subsidiary made in the ordinary course of business; provided that the aggregate amount not to exceed $25,000,000 of such loans and advances outstanding at any time shall not exceed $2,500,000;
(p) Permitted Acquisitions;
(q) Investments in Joint Ventures, provided that the aggregate amount thereof outstanding at any time shall not exceed the greater of (x) $100,000,000 and (y) an amount equal to 5% of the Gross Asset Value of the Parent and the Subsidiaries as derived from the consolidated financial statements most recently delivered pursuant to Section 5.01(a) or (b) hereof on or prior to the time any such Investment is made (it being understood that any Investments permitted by this clause (q) at the time made will not thereafter result in a violation of this clause (q) as a result of subsequent changes in Gross Asset Value);
(r) Investments held by any Person (other than in such Person’s subsidiaries) acquired by the Borrower or a Subsidiary after the Effective Date or of any Person merged or consolidated into the Borrower or merged or consolidated with a Subsidiary in accordance with Section 6.03 after the Effective Date, in each case to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation; provided that this clause (r) is intended solely to grandfather such Investments as are indirectly acquired as a result of an acquisition of such Person otherwise permitted hereunder and any consideration paid in connection with such acquisition that may be allocable to such Investments must be permitted by, and be taken into account in computing compliance with, any basket amounts or limitations applicable to such acquisition hereunder; and
(s) other Investments (as valued at the fair market value (as determined in good faith by the Borrower) of such Investment at the time each such Investment is made); provided that, at the time each such Investment is purchased, made or otherwise acquired, the aggregate amount of all Investments made in reliance on this clause (s) and then outstanding, shall not exceed $50,000,000.
Appears in 1 contract
Samples: Credit Agreement (CyrusOne Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investments;
(c) investments , loans and advances existing on the date hereof February 5, 2003 and set forth on Schedule 6.04;
(dc) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans Loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, to employees for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case business expenses incurred in the ordinary course of business;
(hd) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid Loans and advances by Borrower or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of Subsidiary to any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, Guarantors made in accordance with the restrictions set forth in Section 2.11(c)6.01; provided that, at the time any such loan or advance is made, no Default exists or would result therefrom;
(e) Loans and advances by Borrower or any Subsidiary to make such Permitted Acquisitions) plus any of its directly owned Excluded Subsidiaries made in accordance with the aggregate principal amount of all Indebtedness otherwise incurred or assumed restrictions set forth in connection withSection 6.01; provided that, or resulting from, Permitted Acquisitions (including Indebtedness of any acquired Persons outstanding at the time of any such advance or loan, no Default exists or would result therefrom and at no time shall the applicable Permitted AcquisitionExcluded Subsidiary Loan and Guaranty Amount exceed the Excluded Subsidiary Loan and Guaranty Limit;
(f) If no Default exists, Borrower and the Subsidiaries may make additional investments in or purchase Equity Interest of a wholly owned Subsidiary or a newly created Person organized by Borrower or a Subsidiary that, immediately after such investment or purchase, will be a wholly owned Subsidiary if the obligations under Section 5.11 shall not exceed, on a cumulative basis during be fulfilled and the term aggregate amount of such contributions and investments made under the permissions of this clause (f) does not exceed a Dollar Amount equal to $100,000 since the effective date of the Prior Agreement;
(g) Investments by Foreign Subsidiaries which are held or made outside the United States of the same or similar quality as the Permitted Investments;
(h) The Borrower or any Subsidiary (the "Acquiring Company") may acquire assets constituting a business unit of any Subsidiary (a "Transferring Subsidiary") if the Acquiring Company assumes all the Transferring Subsidiary's liabilities, $50,000,000including without limitation, all liabilities of the Transferring Subsidiary under the Loan Documents to which it is a party and if all of the capital stock of the Transferring Subsidiary is owned directly or indirectly by the Acquiring Company (and, following such assignment and assumption, such Transferring Subsidiary may wind up, dissolve and liquidate) except that no Foreign Subsidiary may acquire assets of a Domestic Subsidiary in such a transaction;
(i) If no Default exists or would result therefrom, Borrower and any investments in Subsidiary may acquire all the Equity Interest of any Person or loans to any other the assets of a Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90constituting a business unit if:
(ji) any other investments inThe Target is involved in a similar type of business activities as the Borrower or the Subsidiary;
(ii) If the proposed acquisition is an acquisition of the stock of a Target, advances the acquisition will be structured so that the Target will become a Subsidiary wholly and directly owned by Borrower or loans will, simultaneously with the acquisition be merged into Borrower or a Subsidiary. If the proposed acquisition is an acquisition of a business unit, the acquisition will be structured so that Borrower or a Subsidiary wholly and directly owned by Borrower will acquire the business unit;
(iii) The cash portion of the Purchase Price for the proposed acquisition in question together with the cash portion of the Purchase Prices paid for all acquisitions consummated in the same fiscal year does not exceed a Dollar Amount equal to the greater of (A) $75,000,000 or Guarantees (B) twenty-five percent (25%) of Indebtedness ofthe total of the following (i.e., any Person ebitda), each calculated for Borrower without duplication on a consolidated basis for the most recently completed four fiscal quarter period prior to the date of determination: (a) Consolidated Net Income (as defined in an aggregate amount not to exceed $25,000,000 at any time outstanding.Section 7.01); plus
Appears in 1 contract
Samples: Credit Agreement (Acxiom Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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 unitunit (whether through purchase of assets, merger or otherwise) (collectively, “Investments”), except:
(a) Permitted Investments, subject to, in the Acquisitioncase of Loan Parties, control agreements in favor of the applicable Collateral Agent (in each case for the benefit of the Agents, the Lenders and the Issuing Banks) or otherwise subject to a perfected security interest in favor of the applicable Collateral Agent (in each case for the benefit of the Agents, the Lenders and the Issuing Banks);
(b) Permitted Investmentsinvestments (and commitments (including consummation of any “put” arrangement in connection therewith) in respect thereof) in existence on the Third Amendment Effective Date and described on Schedule 6.04 and renewals, replacements and extensions thereof;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower Loan Parties and its Restricted their Subsidiaries in Equity Interests in their respective Subsidiaries and Specified Excluded Subsidiaries; PROVIDED provided that in the case of any investments made pursuant to this paragraph (c) after the Third Amendment Effective Date by Loan Parties in Subsidiaries that are not Loan Parties or are Specified Excluded Subsidiaries, both immediately before and immediately after giving pro forma effect thereto, no Default or Event of Default shall have occurred and be continuing and either (i) any (A) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such Equity Interests investment is to occur is at least 1.00 to 1.00 (determined on a Pro Forma Basis in a Subsidiary held by a Loan Party respect of the Test Period in effect at such time) and (B) Aggregate Availability shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), at least $250,000,000 or (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary Liquidity shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds at least $500,000,000, including Aggregate Availability of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)least $400,000,000;
(ed) loans or advances made by the (i) any Borrower to any Subsidiary and made by or Specified Excluded Subsidiary or any Restricted other Borrower or (ii) any Subsidiary to the any Borrower or any other Subsidiary or Specified Excluded Subsidiary; PROVIDED , provided that in the amount case of such any loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign not Loan Parties or to Specified Excluded Subsidiaries, both immediately before and immediately after giving pro forma effect thereto, no Default or Event of Default shall have occurred and be continuing and either (i) (A) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such investment is to occur is at least 1.00 to 1.00 (determined on a Pro Forma Basis in respect of the Test Period in effect at such time) and (B) Aggregate Availability shall be subject to the limitations set forth in clause at least $250,000,000 or (dii) aboveLiquidity shall be at least $500,000,000, including Aggregate Availability of at least $400,000,000;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee in the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee case 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, Subsidiaries or of Restricted Specified Excluded Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party Party, both immediately before and immediately after giving pro forma effect thereto, no Default or Event of Default shall have occurred and be continuing and either (i) (A) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such investment is to occur is at least 1.00 to 1.00 (determined on a Pro Forma Basis in respect of the Test Period in effect at such time) and (B) Aggregate Availability shall be at least $250,000,000 or (ii) Liquidity shall be at least $500,000,000, including Aggregate Availability of at least $400,000,000;
(f) investments made by any Loan Party in any Subsidiary that is not a Loan Party or which is a Specified Excluded Subsidiary of the types described in paragraphs (c), (d) and (e) of this Section 6.04; provided that both immediately before and after giving pro forma effect thereto, (i) no Default or Event of Default shall have occurred and be continuing and (ii) no Level 4 Minimum Aggregate Availability Period shall be in effect; provided further that the aggregate principal amount of all investments permitted by this paragraph (f) shall not exceed $150,000,000 at any time outstanding.
(g) investments (including loans and advances) made by any Loan Party in any Subsidiary that is not a Loan Party or in a Specified Excluded Subsidiary; provided that (i) such investments are made in the ordinary course of business in connection with the Company’s and its Subsidiaries’ cash management systems and (ii) both immediately before and immediately after giving pro forma effect thereto, (i) no Default or Event of Default shall have occurred and be continuing and (ii) no Level 4 Minimum Aggregate Availability Period shall be in effect.
(h) loans or advances made by any Loan Party and the Subsidiaries to their employees on an arms’-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $25,000,000 in the aggregate at any time outstanding;
(i) subject to the limitations set forth applicable provisions of any Security Agreements (including Sections 4.2(a) and 4.4 of the US Security Agreement), notes payable, or stock or other securities issued by Account Debtors to any Loan Party pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in clause (d) abovethe ordinary course of business, consistent with past practices;
(gj) investments or other obligations in the form of Swap Agreements permitted by Section 6.08;
(k) investments of any Person existing at the time such Person becomes a Subsidiary or consolidates or merges with a Borrower or any Subsidiary (including in connection with a Permitted Acquisition), so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(l) investments received in connection with the bankruptcy dispositions of assets permitted by Section 6.05;
(m) investments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”;
(n) Permitted Acquisitions; provided that both immediately before and immediately after giving pro forma effect thereto, (i) no Default or reorganization ofEvent of Default shall have occurred and be continuing, (ii) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such Permitted Acquisition is to occur shall be at least 1.00 to 1.00 (determined on a Pro Forma Basis in respect of the Test Period in effect at such time) and (iii) no Minimum Aggregate Availability Period shall be in effect;
(o) intercompany investments made in connection with the Foreign Reorganization, including any Indebtedness permitted under Section 6.01(m);
(p) option, warrant and similar derivative transactions entered into by the Company in connection with a Permitted Convertible Notes Offering;
(q) Guarantees by any Borrower or settlement any Subsidiary of delinquent accounts and disputes with, customers and suppliersleases or other obligations of any Borrower or any Subsidiary that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(hr) Permitted Acquisitionsinvestments made by Loan Parties in Subsidiaries that are not Loan Parties or in Specified Excluded Subsidiaries; PROVIDED provided that such investments are part of a series of substantially simultaneous investments by Loan Parties in other Loan Parties that results in substantially all the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) proceeds of the definition initial investment being invested, loaned or advanced in one or more Loan Parties;
(s) other investments not otherwise permitted by this Section 6.04; provided that both immediately before and immediately after giving pro forma effect thereto, (i) no Default or Event of the term Prepayment Event Default shall have occurred and be continuing and (ii) no Level 4 Minimum Aggregate Availability Period shall be in effect; provided further that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed in connection with, or resulting from, Permitted Acquisitions investments permitted by this paragraph (including Indebtedness of any acquired Persons outstanding at the time of the applicable Permitted Acquisitions) shall not exceed, on a cumulative basis during exceed $150,000,000 in any fiscal year of the term of this Agreement, $50,000,000;Company; and
(it) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstandingthe OfficeMax Merger.
Appears in 1 contract
Samples: Credit Agreement (Office Depot Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the AcquisitionSpin-off Transactions;
(b) Permitted Investments;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower and its Restricted the Subsidiaries in Equity Interests in their respective SubsidiariesSubsidiaries (that are Subsidiaries prior to such investments); PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Collateral Agreement (subject to the limitations applicable to the pledge of voting Equity Interests of a Foreign Subsidiary referred to in Foreign Subsidiaries set forth in Section 5.12), paragraph (b) of the definition of Collateral and Guarantee Requirement) and (ii) the aggregate amount amount, after giving effect to any such investment, of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness and other obligations of, Unrestricted Subsidiaries that are not Loan Parties (including all excluding any such investments, loans, advances and Guarantees existing on the Effective Datedate hereof and set forth on Schedule 6.04) shall not exceed the greater of $25,000,000 at any time outstanding 37,500,000 and 5.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which financial statements of the Borrower have been delivered pursuant to Section 5.01(a) or 5.01(b) (it being understood thator, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal prior to the Net Proceeds delivery of any such sale or disposition) and (iii) financial statements, based upon the aggregate amount pro forma balance sheet of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary Borrower that is a Foreign Subsidiary shall be deemed to reduce investments included in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionPro Forma Financial Statements);
(e) loans or advances made by the Borrower to any Subsidiary and or made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED provided that (i) any such loans and advances made by a Loan Party shall, to the extent required under the Collateral and Guarantee Requirement, 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 Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (d) above;
(f) Guarantees constituting by the Borrower of Indebtedness permitted or other obligations of any Subsidiary and Guarantees by Section 6.01any Subsidiary of Indebtedness or other obligations of the Borrower or any other Subsidiary; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) any such Guarantee of the Subordinated Debt constituting Indebtedness 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 permitted by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, Section 6.01 and (ii) the aggregate principal amount of Indebtedness and other obligations of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Hedging Agreements permitted under Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,0006.07;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90Permitted Acquisitions;
(j) any investments consisting of extensions of credit in the nature of accounts receivable arising in the ordinary course of business of the Borrower and the Subsidiaries;
(k) prepaid expenses or lease, utility and other investments insimilar deposits, in each case made in the ordinary course of business of the Borrower and the Subsidiaries;
(l) advances or loans to or Guarantees officers, directors and employees of Indebtedness of, any Person the Borrower and the Subsidiaries in an the ordinary course of business of the Borrower and the Subsidiaries; provided that the aggregate amount not to exceed $25,000,000 of such advances outstanding at any time outstandingshall not exceed $5,000,000;
(m) promissory notes or other obligations of officers or other employees of the Borrower or any Subsidiary acquired in the ordinary course of business in connection with such officers’ or employees’ acquisition of Equity Interests of the Borrower (to the extent such acquisition is permitted under this Agreement), so long as no cash, cash equivalents or other assets are advanced by the Borrower or any Subsidiary in connection with such Investment;
(n) investments made as a result of the receipt of noncash consideration from a sale, transfer or other disposition of any asset in compliance with Section 6.05;
(o) investments by the Borrower and the Subsidiaries in Equity Interests of any Person that is the subject of a transaction referred to in clause (ii) of the last paragraph of Section 6.05 resulting from any such transaction consummated from and after the Effective Date, provided that the aggregate amount thereof shall not exceed at any time the Subsidiary Equity Disposition Amount at such time;
(p) other investments not exceeding $10,000,000 in the aggregate in any fiscal year; and
(q) other investments, provided that, at the time each such investment is made, the aggregate amount of investments made in reliance upon this clause (q) shall not exceed the Available Amount at such time.
Appears in 1 contract
Samples: Credit Agreement (PharMerica CORP)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly-Owned Subsidiary prior to such merger) any Equity Interests in or 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investmentsinvestments by the Borrower existing on the date hereof in the capital stock of its Subsidiaries;
(c) loans, advances or investments existing on made among the date hereof and set forth on Schedule 6.04Domestic Credit Parties;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that ;
(e) loans and advances made to employees and shareholders of the Borrower in an aggregate principal amount not to exceed $500,000 at any time outstanding;
(f) subject to the provisions of this Section 6.04(f) and the requirements contained in the definition of Permitted Acquisition, the Borrower and its Wholly-Owned Subsidiaries may from time to time effect Permitted Acquisitions, so long as: (i) a Restricted Subsidiary no Default shall have occurred and be continuing at the time of the consummation of the proposed Permitted Acquisition or immediately after giving effect thereto; (ii) with respect to any Permitted Acquisition not Guarantee permitted by Section 6.04(h), the Subordinated Debt unless consideration to be paid by the Borrower and its Wholly-Owned Subsidiaries for such Permitted Acquisition, when aggregated with the consideration paid for all other Permitted Acquisitions not permitted by Section 6.04(h) and consummated since the Effective Date, is less than $20,000,000; (iii) the Borrower shall have given to the Administrative Agent written notice of such proposed Permitted Acquisition on the earlier of (x) the date on which the Permitted Acquisition is publicly announced and (y) ten (10) Business Days prior to consummation of such Permitted Acquisition (or such shorter period of time as may be reasonably acceptable to the Administrative Agent), which notice shall be executed by its chief financial officer or treasurer and (A) shall describe in reasonable detail the principal terms and conditions of such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, Permitted Acquisition and (B) such Guarantee of the Subordinated Debt is subordinated include computations in reasonable detail reflecting that after giving effect to such Guarantee of proposed Permitted Acquisition and any Indebtedness to be incurred in connection therewith, the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt Borrower is in compliance with Sections 6.09 and 6.10 hereof; and (Civ) at the time of any such Guarantee of Permitted Acquisition involving the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale creation or transfer of the Equity Interests of such Restricted Subsidiary as a result acquisition of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted SubsidiariesSubsidiary, or the acquisition of Restricted capital stock or other Equity Interest of any Person, the Borrower and its Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to have complied with Section 5.10 and the limitations set forth in clause (d) aboveSecurity Documents;
(g) investments received by the Borrower or any of its Subsidiaries in connection with Foreign Subsidiaries in an aggregate amount (calculated by reference to the bankruptcy initial amounts thereof without giving effect to subsequent appreciation or reorganization of, depreciation of the value of the investment or settlement of delinquent accounts and disputes with, customers and suppliers, dividends or distributions in each case in the ordinary course of businessrespect thereof) not to exceed $50,000,000 at any time outstanding;
(h) Permitted Acquisitions; PROVIDED that investments by the sum Borrower or any of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including its Subsidiaries so long as, immediately after giving effect to any such investment and the principal amount incurrence of any Indebtedness issued as deferred purchase price and related Indebtedness, the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are appliedLeverage Ratio shall be less than 2.00 to 1.00 and, in accordance the case of investments for aggregate consideration in excess of $10,000,000, the Borrower shall have given at least ten (10) Business Days’ notice thereof to the Administrative Agent (or such shorter period of time as may be reasonably acceptable to the Administrative Agent) accompanied by computations in reasonable details reflecting compliance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;Leverage Ratio requirement; and
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount (calculated by reference to the initial amounts thereof without giving effect to subsequent appreciation or depreciation of the value of the investment or dividends or distributions in respect thereof) not to exceed $25,000,000 20,000,000 at any time outstanding.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower No Transaction Party will, nor will not, and will not it permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Transaction Party and a Wholly-Owned Subsidiary prior to such mergermerger or consolidation) any Equity Interests in or Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unitunit (whether through purchase of assets, merger or otherwise)(each, an “Investment”), except:
(a) the Acquisition;
(bi) Permitted Investments;
(cii) investments existing Investments in existence on the date hereof of closing and set forth described in Schedule 6D, and Investments consisting of any modification, replacement, renewal, refinancing, reinvestment, or extension of any such Investment; provided that the amount of any such Investment is not increased from the amount of such Investment on Schedule 6.04the date of closing except pursuant to the terms of such Investment (including in respect of any unused commitment), plus any accrued but unpaid interest (including any portion thereof which is payable in kind in accordance with the terms of such modified, extended, renewed, refinanced or replaced Investment) and premium payable by the terms of such Investment thereon and fees and expenses associated therewith, in each case, as in existence on the date of closing;
(diii) investments Investments made by the Borrower Company and its Restricted the Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED , provided that (ia) any such Equity Interests in a Subsidiary held by a Loan Transaction Party shall be pledged pursuant to the Pledge Security Agreement and (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (iib) the aggregate outstanding amount of investments Investments by Loan Transaction Parties in, in Non-Transaction Parties (together with outstanding intercompany loans permitted under clause (b) of the proviso to paragraph 6D(iv) and loans and advances by Loan Parties to, and Guarantees by Loan Parties outstanding principal amount of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and subject to Guarantees existing on permitted under the Effective Dateproviso to paragraph 6D(v)) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale each case determined without regard to any write-downs or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);
(eiv) loans or advances made by the Borrower any Transaction Party to any Subsidiary and made by any Restricted Subsidiary to the Borrower a Transaction Party or any other Subsidiary; PROVIDED , provided that (a) any such loans and advances made by a Transaction Party shall be evidenced by a promissory note pledged pursuant to the Security Agreement and (b) the outstanding amount of such loans and advances made by Loan Transaction Parties to Unrestricted Subsidiaries, or Non-Transaction Parties (together with outstanding Investments permitted under clause (b) of the proviso to Restricted Subsidiaries that are Foreign Subsidiaries, shall be paragraph 6D(iii) and the outstanding principal amount of Indebtedness subject to Guarantees permitted under the limitations set forth proviso to paragraph 6D(iv)) shall not exceed $25,000,000 at any time outstanding (in clause (d) aboveeach case determined without regard to any write-downs or write-offs);
(fv) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED paragraph 6A, provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate outstanding principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Transaction Parties that is Guaranteed by any Loan Transaction Party shall be subject to the limitations set forth in (together with outstanding investments permitted under clause (db) aboveof the proviso to paragraph 6D(iii) and outstanding intercompany loans permitted under clause (b) of the proviso to paragraph 6D(iv)) shall not exceed $25,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(gvi) loans or advances made by a Transaction Party to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $2,500,000 in the aggregate at any one time outstanding;
(vii) notes payable, or stock or other securities issued by Account Debtors to a Transaction Party pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in the ordinary course of business, consistent with past practices;
(viii) Investments in the form of Swap Agreements permitted by paragraph 6G;
(ix) Investments of any Person existing at the time such Person becomes a Subsidiary of the Company or consolidates or merges with the Company or any Subsidiary (including in connection with a Permitted Acquisition), so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(x) Investments received in connection with the bankruptcy or reorganization ofDisposition of assets permitted by paragraph 6E;
(xi) Investments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”;
(xii) Permitted Acquisitions;
(xiii) Investments in prepaid expenses, or settlement negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of delinquent accounts and disputes with, customers and suppliersthe operations of the business, in each case case, in the ordinary course of business;
(hxiv) Permitted Acquisitions; PROVIDED that subject to the sum of all consideration limitations on Investments in Non-Transaction Parties set forth in paragraphs 6D(iii), (iv) and (v), any Investment acquired by the Company or any Subsidiary (a) in exchange for any other than common Equity Interests of Holdings) paid Investment or otherwise delivered accounts receivable held by the Company or any such Subsidiary in connection with Permitted Acquisitions or as a result of a bankruptcy, workout, reorganization, or recapitalization of, or settlement of delinquent accounts or disputes with or judgments against, the issuer, obligor or borrower of such original Investment or accounts receivable, (including b) as a result of a foreclosure by the principal amount Company or any Subsidiary with respect to any secured Investment or other transfer of title with respect to any Indebtedness issued secured Investment in default or (c) as deferred purchase price a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;
(xv) Investments consisting of purchases and acquisitions of inventory, supplies, material, equipment, or other similar assets, or of services, in each case, in the fair market value ordinary course of any other business;
(xvi) the non-cash consideration but excluding the amount exclusive licensing of Net Proceeds from Prepayment Events described in clause intellectual property (a) in the ordinary course of business or (b) which do not materially interfere with the ordinary conduct of the definition business of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) plus the aggregate principal amount of all Indebtedness otherwise incurred Company 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 Subsidiary and do not exceed, on a cumulative basis during the term of this Agreement, $50,000,000secure any Indebtedness;
(ixvii) deposits required by any investments in Governmental Authority or loans public utility, including with respect to any other Person received as noncash consideration for sales, transfers, leases Taxes and other dispositions permitted by Section 6.05similar charges to the extent the applicable obligations would not otherwise constitute an Event of Default; and 95 90and
(jxviii) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person Investments in an aggregate amount not to exceed $25,000,000 at any time outstandingoutstanding (in each case determined without regard to any write-downs or write-offs) $35,000,000.
Appears in 1 contract
Samples: Note Agreement (Gorman Rupp Co)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent and Borrower will not, and will not permit any of its the other Restricted Subsidiaries (other than a Receivables Subsidiary) to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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 unitunit (collectively, “Investments”), except:
(a) the Acquisitioncash and Permitted Investments;
(b) Permitted InvestmentsInvestments existing on the Closing Date and set forth on Schedule 6.04A plus (x) any additional Investments in the Persons identified on such Schedule that, as of April 6, 2017, are required by contract or law to be made after the Closing Date and (y) other Investments that may be required to be made in such Persons after April 6, 2017 either by contract or law; provided that the aggregate amount of Investments permitted by clauses (x) and (y) shall not exceed $50,000,000;
(c) investments existing on Investments by the date hereof and set forth on Schedule 6.04;
(d) investments by Parent, the Borrower and its the other Restricted Subsidiaries in Equity Interests in their respective Restricted Subsidiaries, and by any Foreign Subsidiary in Equity Interests in any other Foreign Subsidiary; PROVIDED provided that (i) any the Restricted Subsidiary in which such Equity Interests Investment is made is a Restricted Subsidiary before such Investment is made, or such Investment is made in a connection with the formation of such Restricted Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), and (ii) the aggregate amount of investments Investments (other than Excluded Guarantees) by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiariesnot Loan Parties (excluding, without duplication, all such Investments existing on the sale Closing Date) outstanding at any time (disregarding any write-down or disposition by a Loan Party write-off of an investment in a Restricted Subsidiary that is a Foreign Subsidiary any such Investment) shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal not exceed the greater of (x) $300,000,000 and (y) 4.0% of Total Assets as of the last day of the most recently ended fiscal quarter of the Parent prior to the Net Proceeds date of such sale or disposition)incurrence;
(ed) loans or advances made by the Borrower Parent to any Restricted Subsidiary and made by any Restricted Subsidiary to the Borrower Parent or any other Restricted Subsidiary; PROVIDED provided that the amount of such loans and advances made by Loan Parties pursuant to Unrestricted Subsidiaries, or this clause (d) to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (dc) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (American Axle & Manufacturing Holdings Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiaries subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly Loan Party and a wholly-owned Restricted Subsidiary prior to such merger) any 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 unitunit (whether through purchase of assets, merger or otherwise), except:
(a) the Acquisitioncash and Permitted Investments;
(b) Permitted Investmentsinvestments in existence on the Effective Date and described in Schedule 6.04 and any extension, modification or renewal of any such investments, but only to the extent not involving additional advances, contributions or other investments of cash or other assets or other increases thereof (other than as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities, in each case, pursuant to the terms of such investment as in effect on the date of hereof);
(c) investments existing on by Holdings in the date hereof Parent Borrower and set forth on Schedule 6.04;
(d) investments by the Parent Borrower and its Restricted the Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED subsidiaries, provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement applicable Collateral Document (subject to the limitations applicable to the pledge of Equity Interests in of a Foreign Subsidiaries set forth Subsidiary pledged to secure the U.S. Secured Obligations referred to in Section 5.12), 5.11 and to the extent permitted by applicable law) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by in Subsidiaries that are not Loan Parties to, (together with outstanding intercompany loans permitted under clause (ii) to the proviso to Section 6.04(d) and outstanding Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on permitted under the Effective Dateproviso to Section 6.04(e)) shall not exceed $25,000,000 7,500,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale each case determined without regard to any write-downs or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);
(ed) loans or advances made by the Parent Borrower to any Subsidiary and made by any Restricted Subsidiary to the Parent Borrower or any other Subsidiary; PROVIDED , provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the applicable Collateral Document and (ii) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject not Loan Parties (together with outstanding investments permitted under clause (ii) to the limitations set forth proviso to Section 6.04(c) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $7,500,000 at any time outstanding (in clause (d) aboveeach case determined without regard to any write-downs or write-offs);
(fe) (i) Guarantees constituting of Indebtedness that are permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with outstanding investments permitted under clause (ii) to the limitations set forth in proviso to Section 6.04(c) and outstanding intercompany loans permitted under clause (dii) aboveto the proviso to Section 6.04(d)) shall not exceed $7,500,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs) and (ii) Guarantees of obligations (other than Indebtedness) of any Loan Party in respect of sale and leaseback transactions permitted by Section 6.06;
(f) loans or advances made by a Loan Party to its (i) directors, officers and employees in the ordinary course of business for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $1,000,000 in the aggregate at any one time outstanding and (ii) directors, officers and employees to finance the purchase of Equity Interests in a Loan Party up to a maximum of $1,000,000 in the aggregate at any one time outstanding (in each case determined without regard to any write-downs or write-offs);
(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 or consolidates, amalgamates or merges with or into the Parent Borrower or any Subsidiary so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation, amalgamation or merger;
(i) investments received in connection with the bankruptcy disposition of any asset permitted by Section 6.05;
(j) investments received (i) in exchange for any other investment or account receivable in connection with or as a result of a bankruptcy, workout, reorganization ofor recapitalization of the issuer of such other investment or account receivable, (ii) as a result of a foreclosure by the Parent Borrower or any Subsidiary with respect to any secured investment or other transfer of title with respect to any secured investment in default or (iii) in settlement or compromise of legal claims and delinquent accounts and disputes withreceivable;
(k) investments constituting deposits described in clause (c) or (d) of the definition of the term “Permitted Encumbrances” or clause (o), customers and suppliers, in each case (s) or (t) of Section 6.02;
(l) extensions of trade credit in the ordinary course of business;
(hi) investments in AAG either directly or indirectly after the Effective Date in an aggregate amount not in excess of $30,000,000 (plus an amount equal to any returns of capital or sale proceeds actually received in cash in respect of such investment (which amount shall not exceed the amount of such investment valued at cost at the time such investment was made)) and (ii) investments in any other joint venture or similar entity in an aggregate amount not in excess of $5,000,000 (plus an amount equal to any returns of capital or sale proceeds actually received in cash in respect of such investment (which amount shall not exceed the amount of such investment valued at cost at the time such investment was made)); provided, however, that after giving effect to any investment made pursuant to this clause (m), Reference Availability shall be not less than $35,000,000;
(n) (i) the Acquisition and (ii) Permitted Acquisitions; PROVIDED , provided that, except to the extent that Permitted Acquisitions are made with Excluded Proceeds, the sum aggregate purchase price of all consideration such Permitted Acquisitions, which shall be deemed to include, with respect to any such Permitted Acquisition, (other than common Equity Interests A) a good faith estimate by the applicable Loan Party of Holdings) paid or otherwise delivered the post-closing payment adjustments, earn-outs and non-compete payments to be made in connection with such Permitted Acquisitions Acquisition and (B) the principal amount of Indebtedness that is assumed pursuant to Section 6.01(i), shall not exceed $175,000,000 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(i) in connection therewith and the amount estimated to be paid in respect of post-closing payment adjustments, earn-outs and non-compete payments) in respect of such Permitted Acquisition);
(o) other investments, loans and advances by the Parent Borrower or any Subsidiary (including investments in any minority-owned joint venture) in an aggregate amount, as valued at cost at the time each such investment, loan or advance is made and including all related commitments for future investments, loans or advances (and the principal amount of any Indebtedness issued as deferred purchase price that is assumed or otherwise incurred in connection with such investment, loan or advance), not exceeding $5,000,000 in the aggregate for all such investments made or committed to be made from and after the fair market value Effective Date plus an amount equal to any returns of capital or sale proceeds actually received in cash in respect of any other non-cash consideration but excluding such investments (which amount shall not exceed the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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 investment valued at cost at the time of the applicable Permitted Acquisition) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000such investment was made);
(ip) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions the extent permitted by Section 6.05the Senior Secured Notes Indenture, investments made with the AAG Proceeds, provided that such investments are made within twelve months after the receipt by the Parent Borrower or any Subsidiary of such AAG Proceeds; and 95 90and
(jq) any other investments (other than any acquisition of all the outstanding Equity Interests (other than directors’ qualifying shares) in, advances or loans to or Guarantees of Indebtedness substantially all the assets of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstandingor all or substantially all the assets constituting a division or line of business of, a Person) made with Excluded Proceeds.
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 or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit, except:
(a) Permitted Investments and Investments existing as of the Acquisitiondate hereof and set forth in Schedule 6.04 of the Disclosure Letter;
(b) Permitted InvestmentsAcquisitions;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes date hereof in the capital stock of determining outstanding investments in Unrestricted its Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(ed) investments, loans or advances made by the Borrower in or to any Subsidiary and made by any Restricted Subsidiary in or to the Borrower or any other Subsidiary; PROVIDED Subsidiary (provided that the not more than an aggregate amount of such $25,000,000 in investments, loans or advances or capital contributions may be made and advances made remain outstanding pursuant to this clause (d), at any time, by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that which are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) abovenot Loan Parties);
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(gf) investments received Investments consisting of extensions of credit in connection with the bankruptcy nature of accounts receivable or reorganization of, notes receivable arising from the grant of trade credit in the ordinary course of business and any prepayments and other credits to suppliers or settlement of delinquent accounts and disputes with, customers and suppliers, in each case vendors made in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss or in connection with a bankruptcy or reorganization;
(g) Investments arising out of the receipt of non-cash consideration for any disposition permitted by Section 6.03;
(h) Permitted Acquisitions; PROVIDED that advances to officers, directors and employees of the sum Borrower and Subsidiaries made in the ordinary course of all consideration business and substantially consistent with past practice for travel, entertainment, relocation, commission advances and analogous ordinary business purposes;
(other than common Equity Interests of Holdingsi) paid or otherwise delivered in connection with Permitted Acquisitions Investments arising under any Swap Agreement permitted pursuant to Section 6.05;
(including j) to the principal amount of any Indebtedness issued as deferred purchase price extent constituting Investments, pledges and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause deposits permitted pursuant to clauses (ac) and (d) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted AcquisitionsEncumbrances;
(k) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed in connection with, or resulting from, Permitted Acquisitions (including Indebtedness Investments of any acquired Persons outstanding Person that becomes a Subsidiary after the date hereof, provided that (i) such Investments exists at the time that such Person becomes a Subsidiary and (ii) such Investments were not made in anticipation of the applicable Permitted Acquisitionsuch Person becoming a Subsidiary; and
(l) shall not exceedany other investment, loan or advance (other than acquisitions) so long as both immediately prior to and after giving effect (including giving effect on a cumulative basis during the term of this Agreement, $50,000,000;
Pro Forma Basis) thereto (i) any investments in no Default or loans to any other Person received as noncash consideration for sales, transfers, leases Event of Default has occurred and other dispositions permitted by Section 6.05; is continuing and 95 90
(jii) any other investments in, advances or loans the Leverage Ratio is equal to or Guarantees of Indebtedness of, any Person in an aggregate amount not less than 2.25 to exceed $25,000,000 at any time outstanding1.00.
Appears in 1 contract
Samples: Credit Agreement (Informatica Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent and Borrower will not, and will not permit any of its Restricted the other Subsidiaries (other than a Receivables Subsidiary) to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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, except:
(a) the Acquisitioncash and Permitted Investments;
(b) Permitted Investmentsinvestments existing on the Restatement Effective Date and set forth on Schedule 6.04A plus (x) any additional investments in the Persons identified on such Schedule that, as of June 30, 2011, are required by contract or law to be made after the Restatement Effective Date and (y) other investments that may be required to be made in such Persons after June 30, 2011 either by contract or law; provided that the aggregate amount of investments permitted by clauses (x) and (y) shall not exceed $25,000,000;
(c) investments existing on by the date hereof and set forth on Schedule 6.04;
(d) investments by Parent, the Borrower and its Restricted the other Subsidiaries in Equity Interests in their respective Subsidiaries, and by any Foreign Subsidiary in Equity Interests in any other Foreign Subsidiary; PROVIDED provided that (i) any the Subsidiary in which such Equity Interests in investment is made is a Subsidiary held by a Loan Party shall be pledged pursuant to before such investment is made, or such investment is made in connection with the Pledge Agreement (subject to the limitations applicable to the pledge formation of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), such Subsidiary and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees (other than Excluded Guarantees) by Loan Parties of Indebtedness and other obligations of, Unrestricted Subsidiaries that are not Loan Parties (including excluding, without duplication, all such investments, loans, loans or advances and Guarantees existing on the Restatement Effective Date) shall not exceed $25,000,000 250,000,000 at any time outstanding (it being understood thatdisregarding any write-down or write-off of any such loan, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale advance or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionother investment);
(ed) loans or advances made by the Borrower Parent to any Subsidiary and made by any Restricted Subsidiary to the Borrower Parent or any other Subsidiary; PROVIDED provided that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (dc) above;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01the Parent of obligations of any Subsidiary and Guarantees by any Subsidiary of obligations of the Parent or any other Subsidiary; PROVIDED provided that (i) a Restricted Subsidiary that is not a Loan Party shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee any obligations 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, Loan Party and (ii) the aggregate principal amount of Indebtedness and other obligations of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause (dc) above;
(f) loans and advances to employees in the ordinary course of business of the Parent and the Subsidiaries as presently conducted in an aggregate amount not to exceed $10,000,000 at any time outstanding (disregarding any write-down or write-off thereof):
(g) Permitted Acquisitions;
(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;
(hi) Permitted Acquisitions; PROVIDED that the sum of all consideration investments and Guarantees described on Schedule 6.04B;
(other than common Equity Interests of Holdingsj) paid or otherwise delivered in connection with Permitted Acquisitions investments, Guarantees, loans and advances made amongst and between Foreign Subsidiaries;
(including the principal amount of any Indebtedness issued as deferred purchase price k) promissory notes and the fair market value of any other non-cash consideration but excluding received in connection with dispositions of assets;
(l) Permitted Joint Ventures;
(m) investments in the amount ordinary course of Net Proceeds from Prepayment Events described business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(n) investments made in clause connection with a Permitted Reorganization; and
(ao) of other investments, loans, advances, acquisitions and Guarantees; provided that (i) at the definition of the term Prepayment Event that are appliedtime any such investment, in accordance with Section 2.11(c)loan, to make such Permitted Acquisitionsadvance, acquisition or Guarantee is made, and immediately after giving effect thereto, no Default shall have occurred and be continuing and (ii) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed in connection withsuch investments, or resulting fromloans, Permitted Acquisitions (including Indebtedness of any acquired Persons advances, acquisitions and Guarantees outstanding at the any time of the applicable Permitted Acquisition(disregarding any write-down or write-off thereof) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding100,000,000.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (American Axle & Manufacturing Holdings Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Restricted the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly Owned Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsAcquisitions; provided that (i) all of the obligations under the Senior Unsecured Credit Agreement have been paid in full and the commitments thereunder have been terminated and (ii) the aggregate cash consideration for such Permitted Acquisitions, which shall be deemed to include (A) any amounts actually paid pursuant to any post-closing payment adjustments, earn-outs or non-compete payments and (B) the principal amount of Indebtedness that is assumed pursuant to Section 7.01(a)(vi) or otherwise incurred in connection with such Permitted Acquisition, shall not exceed $60,000,000 for any period of four consecutive fiscal quarters and $120,000,000 in the aggregate since the Closing 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 7.01(a)(vi) in connection therewith) in respect of such Permitted Acquisition);
(c) investments existing on the date hereof and set forth on Schedule 6.047.04;
(d) investments by the Parent Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Collateral Agreement (subject to the limitations applicable to common stock of a Foreign Subsidiary referred to in the pledge definition of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), “Collateral and Guarantee Requirement”) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by in Subsidiaries that are not Loan Parties to, (together with outstanding intercompany loans permitted under clause (ii) to the proviso to subsection (e) hereof and outstanding Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries permitted under the proviso to subsection (including all such investments, loans, advances and Guarantees existing on the Effective Dateg) hereof) shall not exceed $25,000,000 500,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale each case determined without regard to any write-down or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);
(e) loans or advances made by the Parent Borrower to any Subsidiary and made by any Restricted Subsidiary to the Parent Borrower or any other Subsidiary; PROVIDED 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 Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in not Loan Parties (together with investments permitted under clause (ii) of subsection (d) abovehereof and outstanding Guarantees permitted under the proviso to subsection (g) hereof 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 6.017.01; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with investments permitted under clause (ii) of Section 7.04(d) and outstanding intercompany loans permitted under clause (ii) to the limitations set forth proviso to Section 7.04(e)) shall not exceed $500,000 at any time outstanding (in clause (d) aboveeach case determined without regard to any write-downs or write-offs);
(gh) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions the form of Swap Agreements permitted by Section 6.05; and 95 907.07;
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person existing at the time such Person becomes a Subsidiary of a Borrower or consolidates or merges with a Borrower or any of the Subsidiaries (including in connection with a Permitted Acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger;
(k) investments received in connection with the dispositions of assets permitted by Section 7.05;
(l) the Automatic Laundry Acquisition shall be permitted in accordance with the terms of the Automatic Laundry Acquisition Agreement;
(m) investments made to the extent permitted by Section 7.03; and
(n) other investments, loans and 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 Closing 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 $25,000,000 the amount of such investment valued at any cost at the time outstandingsuch investment was made).
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 or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investmentsinvestments existing on the Effective Date and set forth on Schedule 6.04, to the extent such investments would not be permitted under any other clause of this Section;
(c) investments existing on in the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in of their respective Subsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in of a Foreign Subsidiaries set forth Subsidiary referred to in Section 5.12), ) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) that are not Loan Parties shall not exceed $25,000,000 1,000,000 in the aggregate at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(ed) loans or advances made by the Borrower to any Subsidiary of the Borrower (or to Holdings, but only as permitted by Section 6.07) and made by any Restricted Subsidiary of the Borrower to the Borrower or any other SubsidiarySubsidiary of the Borrower; PROVIDED provided that the amount of (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement and (ii) the amount of all such loans and advances by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (dc)(ii) above;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) a Restricted neither the Borrower nor any Subsidiary shall not Guarantee the Holdings Senior Discount Debentures, (ii) the Existing Subordinated Debt unless (A) such Restricted Subsidiary also has shall not be Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by Holdings or by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer other than a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms Loan Party that is a Subsidiary of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (iiiii) the Additional Subordinated Debt shall not be Guaranteed by any Subsidiary other than a Subsidiary Loan Party that is a Subsidiary of the Borrower, (iv) the Replacement Subordinated Debt shall not be Guaranteed by any Subsidiary other than a Subsidiary Loan Party that is a Subsidiary of the Borrower, (v) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is not Loan Parties Guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause (dc)(ii) aboveabove and (vi) a Subsidiary that is not a Loan Party shall not Guarantee any Indebtedness of any Loan Party;
(gf) 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) promissory notes received from employees of Holdings and its Subsidiaries evidencing (i) loans made for the purpose of permitting such employees to purchase capital stock of Holdings in an aggregate principal amount not exceeding $5,000,000 at any time outstanding or (ii) the loan made to Xxxxxxx Xxxxx in the principal amount of $1,300,000;
(h) Permitted Acquisitions; PROVIDED provided that (i) the consideration for each Permitted Acquisition shall consist solely of cash, shares of common stock of Holdings, the assumption of Indebtedness of the acquired Person or encumbering the acquired assets, Indebtedness referred to in clauses (vii) and (viii) of Section 6.01(a) or a combination thereof and (ii) the sum of all consideration (other than common Equity Interests of Holdings) paid Indebtedness so assumed or otherwise delivered resulting from Permitted Acquisitions (including Indebtedness referred to in clauses (vii) and (viii) of Section 6.01(a)) plus the cash consideration paid in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-than cash consideration but excluding the amount of received as Net Cash Proceeds from Prepayment Events described in the issuance by Holdings of additional shares of its common stock to finance Permitted Acquisitions, as contemplated by clause (ac)(ii) of the definition of "Prepayment Event"), minus the term Prepayment Event that are appliedbook value (determined, in accordance with Section 2.11(c)respect of each Permitted Acquisition, as of the date of consummation thereof) of all cash, cash equivalents, prepaid expenses, inventory and accounts receivable acquired pursuant to make such Permitted Acquisitions) 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, on a cumulative basis during any fiscal year of the term Borrower, when aggregated with the sum of this Agreementall Capital Expenditures during such fiscal year, $50,000,000the amount permitted for such fiscal year pursuant to Section 6.12;
(i) any investments loans or advances to employees in or the ordinary course of business; provided that the aggregate amount of all loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions advances permitted by Section 6.05; and 95 90this clause (i) shall not exceed $750,000 at any time outstanding;
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed exceeding $25,000,000 2,000,000 at any time outstanding;
(k) obligations of management to the Borrower in connection with split dollar life insurance policies; provided that the aggregate amount of all obligations permitted by this clause (k) shall not exceed $1,000,000 at any time outstanding; and
(l) promissory notes contemplated by clause (ii) of the proviso to Section 6.05.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Ultimate Parent will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Wholly-Owned Subsidiary prior to such mergermerger or consolidation) any Equity Interests in or 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsAcquisitions;
(c) investments by Ultimate Parent and its Subsidiaries existing on the date hereof in the capital stock of its Subsidiaries and such other investments of Ultimate Parent and its Subsidiaries existing on the date hereof and set forth on Schedule 6.046.01;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held investments, loans, advances or capital contributions made by a Loan Party shall be pledged pursuant in or to the Pledge Agreement any Subsidiary and made by any Subsidiary in or to a Loan Party or any other Subsidiary or any Guarantee made by a Loan Party or any Subsidiary in respect of Indebtedness of a Loan Party or any other Subsidiary (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) provided that the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 capital contributions that are made and remain outstanding, at any time outstanding (it being understood thattime, for purposes of determining outstanding investments in Unrestricted Subsidiariesby Loan Parties to Subsidiaries which are not Loan Parties, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) together with the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and such outstanding Guarantees made by Loan Parties of Indebtedness of, Restricted of Subsidiaries that are Foreign Subsidiaries (including all such investmentsnot Loan Parties, loans, advances and Guarantees existing on the Effective Date) shall does not exceed 510% of Consolidated Total Assets at (determined as of the last day of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or Section 5.01(b) (or, prior to the delivery of any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiariessuch financial statements, the sale or disposition by a Loan Party last day of an investment the last fiscal quarter included in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed the financial statements referred to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionSection 3.04(a));
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that ;
(if) a Restricted Subsidiary shall not Guarantee loans or advances to officers and directors of Ultimate Parent or any of its Subsidiaries the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations net proceeds of which are used solely to purchase Equity Interests in Ultimate Parent pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale a restricted stock or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) abovestock purchase plan;
(g) loans or advances to officers and employees of any Loan Party or any of its Subsidiaries (in addition to those permitted by clause (f)), at any time outstanding not to exceed an aggregate amount for Ultimate Parent and its Subsidiaries of $3,000,000;
(h) investments in connection with any Tax Restructuring;
(i) any loan to a Person purchasing or leasing real property or equipment from Ultimate Parent or any Subsidiary;
(j) investments consisting of promissory notes received as proceeds of asset dispositions permitted by Section 6.03;
(k) investments acquired in connection with the settlement of delinquent Accounts (as defined in the UCC) in the ordinary course of business or in connection with the bankruptcy or reorganization of, of any supplier or settlement of delinquent accounts and disputes with, customers and suppliers, in each case customer;
(l) bank deposits in the ordinary course of business;
(hm) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions investments (including the principal amount purchase of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(cEquity Interests), loans or advances in or to make such Permitted Acquisitions) plus Subsidiaries or joint ventures so long as the aggregate principal outstanding amount of all Indebtedness otherwise incurred or assumed in connection withsuch investments, or resulting from, Permitted Acquisitions (including Indebtedness loans and advances made during the term of any acquired Persons outstanding this Agreement does not exceed 25% of LTM EBITDA at the time of the applicable making of any such investment, loan or advance;
(n) Swap Agreements permitted under Section 6.05;
(o) investments consisting of the redemption, purchase, repurchase or retirement of Equity Interests permitted under Section 6.07;
(p) Investments of a Person (i) existing at the time such Person becomes a Subsidiary or consolidates or merges with Ultimate Parent or any Subsidiary or (ii) that are acquired as part of an Permitted Acquisition, in each case, so long as such Investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger or other Permitted Acquisition;
(q) Investments in Permitted Equity Derivative Transactions; and
(r) any other investment, loan, advance or acquisition; provided that (i) both immediately prior to and after giving effect (including pro forma effect) thereto, no Event of Default under clauses (a), (b), (h) or (i) in Article VII shall not exceedexist or would result therefrom, (ii) after giving effect thereto, Ultimate Parent is in compliance, on a cumulative basis during Pro Forma Basis, with the term financial covenant contained in Section 6.11(a) recomputed as of the last day of the most recently ended fiscal quarter of Ultimate Parent for which financial statements are available. Notwithstanding anything to the contrary in this Agreement, $50,000,000;
(i) no Loan Party shall be permitted to contribute, dispose of or otherwise transfer legal title to, or license on an exclusive basis, any investments in or loans Material Intellectual Property to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount Subsidiary that is not to exceed $25,000,000 at any time outstandinga Loan Party.
Appears in 1 contract
Samples: Credit Agreement (Grindr Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences evidence of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except:
(a) the AcquisitionCash and Cash Equivalents;
(b) Permitted Investments;
(c) investments existing on the date hereof and set forth on Schedule 6.046.04 and any other investments from time to time not to exceed at any time outstanding an aggregate principal amount in excess of the Net Proceeds received from the disposition of investments permitted by this Section ERROR! NOT A VALID BOOKMARK SELF-REFERENCE.;
(dc) investments by the Borrower Company and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to excluding the limitations applicable to the pledge common stock of Equity Interests in any Foreign Subsidiaries set forth in Section 5.12Subsidiary), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries that are not Loan Parties (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 20,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) neither the aggregate amount Company nor any of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted the Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on will create or acquire any Subsidiary after the Effective Date) shall Date that is not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)Party;
(ed) loans or advances made by the Borrower Company to any Subsidiary and made by any Restricted Subsidiary to the Borrower Company or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (dc) above;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01Indebtedness; PROVIDED Certain Equity Securities; provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause (dc) above;
(gf) 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;
(hg) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding received in connection with the sale, transfer, lease or disposition of any asset in compliance with Sections Asset Sales and Sale and Leaseback Transactions;
(h) other investments made after the Effective Date; provided that at any time there is any outstanding Exposure hereunder, (i) the aggregate amount of Net Proceeds from Prepayment Events described such investments plus the aggregate amount of Restricted Payments made pursuant to Section 6.08(a)(i) shall not exceed $150,000,000 in clause the aggregate and (aii) immediately before and after giving effect to the making of any such Investments, (A) Excess Availability shall be in an amount greater than twenty percent (20%) of the definition Tranche A-1 Borrowing Base (or, if the Tranche A-1 Commitments have been terminated, the Tranche A Borrowing Base) then in effect, and (B) no Default or Event of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;Default has occurred and is continuing; and
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases earn-outs and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees customary post-disposition obligations arising out of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstandingPermitted Divestitures.
Appears in 1 contract
Samples: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly Owned Subsidiary prior to such merger) any Equity Interests in 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 unitunit (collectively, “Investments”), except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsInvestments existing on the Effective Date and set forth in Section 6.5 of the Disclosure Letter;
(c) investments existing on Investments in any Wholly Owned Subsidiary, provided that, if and to the date hereof and extent applicable, the requirements set forth on Schedule 6.04in Section 5.11 with respect to such Wholly Owned Subsidiary are satisfied;
(d) investments by loans and advances to employees of the Parent Borrower or any Restricted Subsidiary in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for the Parent Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant not to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 7,500,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.016.2; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the any Subordinated Debt or any Other Permitted Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee and Collateral Agreement, (B) in the case of any Guarantee of Subordinated Debt, 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 the sale or transfer Disposition of the Equity Interests of such relevant Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the ObligationsSubsidiary, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Wholly Owned Subsidiary Guarantors that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause clauses (dc), (g), (l) aboveor (m) of this Section 6.5 and (iii) a Restricted Subsidiary shall not Guarantee the Indebtedness of any Parent Borrower or any Subsidiary Guarantor unless such Restricted Subsidiary has also Guaranteed the Obligations pursuant to the Guarantee and Collateral Agreement;
(f) Permitted Acquisitions (including any related Investment in any Restricted Subsidiary in order to provide all or any portion of (but not more than) the Consideration for such Permitted Acquisition);
(g) investments received in connection with (i) Guarantees by the bankruptcy Parent Borrower and any of its Restricted Subsidiaries of any Contractual Obligations (not constituting Indebtedness) of the Parent Borrower or reorganization of, any Restricted Subsidiary and (ii) Guarantees by the Parent Borrower of any obligations of any of its Foreign Subsidiaries under any foreign currency Hedging Agreements of such Foreign Subsidiaries or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of businesscash pooling arrangements among Foreign Subsidiaries (sometimes intermediated by a commercial bank);
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000[Reserved];
(i) any investments in Investments financed with Capital Stock of the Parent Borrower (or loans the net proceeds of the issuance of Capital Stock of the Parent Borrower); provided that no Event of Default shall occur after giving effect to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90such Investment;
(j) Investments comprised of capital contributions (whether in the form of cash, a note or other assets) to a Receivables Entity or otherwise resulting from transfers of assets permitted by Section 6.6(c);
(k) Investments comprised of non-cash consideration received by the Parent Borrower or any other investments in, advances or loans to or Restricted Subsidiary in connection with any Disposition permitted by Section 6.6(e);
(l) (i) Guarantees by the Parent Borrower and any of its Restricted Subsidiaries of Indebtedness ofpermitted by subsections (j), (p) and (r) of Section 6.2 and (ii) Guarantees in the form of FCIs caused to be issued by the Parent Borrower or any Person Foreign Subsidiary Borrower pursuant to Section 2.6 to support the Indebtedness of any Chinese Subsidiary or other Foreign Subsidiary permitted by Section 6.2(r);
(i) other Investments if, after giving effect to any such Investment on a pro forma basis in an each case recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower for which the financial statements were (or were required to be) delivered pursuant to Section 5.1(a) or (b) as if such Investment had occurred on the first day of each relevant period, the Consolidated Leverage Ratio is less than 2.50 to 1.0 and (ii) other Investments in the aggregate amount not to exceed $25,000,000 an amount equal to (A) 10% of Total Consolidated Assets plus (B) an additional amount for all such Investments made after the Funding Date that is equal to the portion, if any, of the Available Amount on such date that the Parent Borrower elects to apply to this Section 6.5(m)(ii)(B) if, after giving effect to any such Investment on a pro forma basis in each case recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower for which the financial statements were (or were required to be) delivered pursuant to Section 5.1(a) or (b) as if such Investment had occurred on the first day of each relevant period, the Consolidated Leverage Ratio is greater than or equal to 2.50 to 1.0. The outstanding amount of any Investment shall be equal to the sum of (x) the original cost of such Investment (such original cost to be determined at the time outstandingany such Investment is originally committed to be made by the applicable Person), plus (y) the cost of all additions thereto, minus (z) any cash proceeds from the disposition of or other cash or non-cash (at the fair market value thereof as reasonably determined in good faith by the Parent Borrower) distributions on or return of such Investment, without any adjustments for increases or decreases in value or write-ups, write-downs or write-offs with respect to such Investment; provided that the amount of any Investment shall not be less than zero.
Appears in 1 contract
Samples: Credit Agreement (SPX Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly-Owned Subsidiary prior to such merger) any Equity Interests in or 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 substantially all of the assets of any other Person constituting a or any business unitunit of any other Person, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investments;
investments (cincluding investments in Subsidiaries) investments existing on the date hereof and set forth on Schedule 6.04;
(dc) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall loans or advances giving rise to Indebtedness permitted to be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in incurred under Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition6.01(e) and (iii) other investments which, if made in the aggregate amount form of investments by Loan Parties ina loan or advance, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of would give rise to Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall permitted to be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionincurred under Section 6.01(e);
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that 6.01 and Guarantees by Borrower of trade and other obligations of Subsidiaries not constituting Indebtedness and incurred in the ordinary course of business;
(e) subject to the provisions of this Section 6.04(e) and the requirements contained in the definition of Permitted Acquisition, the Borrower and its Wholly-Owned Subsidiaries may from time to time effect Permitted Acquisitions, so long as: (i) a Restricted Subsidiary no Default shall not Guarantee have occurred and be continuing at the Subordinated Debt unless time of the consummation of the proposed Permitted Acquisition or immediately after giving effect thereto; (Aii) if the proposed Permitted Acquisition is for aggregate consideration of $50,000,000 or more (inclusive of reasonably anticipated (by the Company in good faith) earn-out payments associated with such Restricted Subsidiary also has Guaranteed Permitted Acquisition), the Obligations pursuant Borrower shall have given to the Guarantee Agreement, Administrative Agent written notice of such proposed Permitted Acquisition on the earlier of (Bx) the date on which the Permitted Acquisition is publicly announced and (y) ten (10) Business Days prior to consummation of such Guarantee Permitted Acquisition (or such shorter period of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable time as may be reasonably acceptable to the Lenders than Administrative Agent), which notice shall be executed by its chief financial officer or treasurer and shall describe in reasonable detail the subordination provisions of the Subordinated Debt principal terms and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests conditions of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests Permitted Acquisition and shall certify that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, immediately before and immediately after giving effect to such Permitted Acquisition, will be in pro forma compliance with Sections 6.12 and 6.13; (iii) at the time of any such Permitted Acquisition involving the creation or acquisition of a Subsidiary, or the acquisition of capital stock or other Equity Interest of any Person, the Borrower and its Subsidiaries shall have complied with Section 5.11; and (iiiv) the aggregate principal amount Leverage Ratio, calculated on a pro forma basis as if such Permitted Acquisition(s) had been made (and any related Indebtedness incurred) on the first day of Indebtedness of Unrestricted Subsidiariesthe applicable computation period, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject less than or equal to 3.00 to 1.00;
(f) routine advances to officers, directors and employees for travel, entertainment, relocation or other reimbursable expenses incurred in the ordinary course of business and to the limitations set forth in clause (d) aboveextent permitted by applicable law;
(g) investments received in connection with the bankruptcy or reorganization of any Person and in settlement of obligations of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case any Person arising in the ordinary course of businessbusiness and upon foreclosure with respect to any secured investment or other transfer of title with respect to any secured investment;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price promissory notes and the fair market value of any other non-cash consideration but excluding received in connection with Asset Dispositions permitted by Section 6.03;
(i) investments in the ordinary course of business consisting of (i) endorsements for collection or deposit or (ii) customary trade arrangements with customers;
(j) a debt or equity investment by the Borrower in ScanSource Europe CV not exceeding $5,000,000 in the aggregate;
(k) investments under Swap Agreements permitted by Section 6.05;
(l) loans to and investments in ScanSource Brazil or its subsidiaries made after the date hereof so long as (i) the aggregate amount of Net Proceeds from Prepayment Events described in clause such investments made by the Borrower and its Subsidiaries (a) including, but not limited to, deferred purchase price payable for the acquisition of ScanSource Brazil and, without duplication, any guarantee of the definition obligations of ScanSource Brazil or its subsidiaries) do not in the aggregate exceed the sum of (A) $100,000,000 minus the aggregate consideration paid in respect of the term Prepayment Event that are appliedacquisition of, in accordance with Section 2.11(c)or invested in, ScanSource Brazil on or prior to make such Permitted Acquisitionsthe date hereof plus (B) the Excess Amount plus (C) $50,000,000 minus the aggregate outstanding principal amount of all Indebtedness otherwise incurred in reliance on Section 6.01(e)(B) or assumed in connection with(ii) the Leverage Ratio, calculated giving effect thereto as of the time of the incurrence shall be less than or resulting from, Permitted Acquisitions equal to 3.00 to 1.00;
(including Indebtedness of any acquired Persons outstanding m) other Investments made so long as (i) no Default shall have occurred and be continuing at the time of the applicable Permitted Acquisitionconsummation thereof or immediately after giving effect thereto and (ii) shall not exceedthe Leverage Ratio, calculated on a cumulative pro forma basis during as if such Investment had been made (and any related Indebtedness incurred) on the term first day of this Agreementthe applicable computation period, $50,000,000;shall be less than or equal to 2.00 to 1.00; and
(in) any other investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an the aggregate amount not to exceed $25,000,000 at any time outstandingnot exceeding $50,000,000. For purposes of determining compliance with Sections 6.04(e), 6.04(l) and 6.04(m), any investment made shall be deemed to comply with such Section if either (a) such investment complies with such Section on the date made or (b) in cases where such investment is of a nature that it may fluctuate over time, if the maximum amount of such investment complies with such Section on the date the obligations to make such investment is entered into, whether or not all of such investment is made on such date and regardless of fluctuations in the amount of such investments up to but not exceeding such maximum amount.
Appears in 1 contract
Samples: Credit Agreement (Scansource Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Borrowers will not, and will not permit any of its Restricted the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) investments of the AcquisitionCompany under Hedging Agreements entered into in accordance with Section 6.07;
(b) Permitted Investments;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower Company and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to common stock of a Foreign Subsidiary referred to in paragraph (b) of the pledge definition of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), Collateral and Guarantee Requirement) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted PharMerica or any of its subsidiaries or of Subsidiaries that are not Loan Parties (including all other than such investments, loans, advances and Guarantees existing on (i) to the Effective Dateextent solely among PharMerica and subsidiaries of PharMerica that are Subsidiary Loan Parties and (ii) in any Securitization Entity pursuant to a Securitization) shall not exceed $25,000,000 5,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(e) loans or advances made by the Borrower Company to any Subsidiary and made by any Restricted Subsidiary to the Borrower Company or any other Subsidiary; PROVIDED provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement and (ii) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED that (i) loans and advances to employees of the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price Company and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described Subsidiaries in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) plus the an aggregate principal amount at any time outstanding not to exceed $10,000,000 and (ii) advances of all Indebtedness otherwise incurred or assumed payroll payments and expenses to employees in connection with, or resulting from, Permitted Acquisitions (including Indebtedness the ordinary course of any acquired Persons outstanding at the time of the applicable Permitted Acquisition) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000business;
(i) loans and advances to customers of the Company and the Subsidiaries (other than any investments created under paragraph (g) above) in or an aggregate principal amount at any time outstanding not to exceed $50,000,000 provided that no more than $10,000,000 in the aggregate of such loans and advances shall at any time be outstanding to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90a single customer;
(j) any other investments indiscounts paid to customers in advance of sales in connection with the commencement or renewal of distribution agreements in the ordinary course of business and consistent with past practice or with the then current practices of suppliers in the applicable market, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate unused amount for all such discounts at any time outstanding not to exceed $25,000,000 30,000,000;
(k) Permitted Acquisitions in respect of which the aggregate amount of consideration paid after the date hereof (whether cash or property, as valued at the time such investment is made) does not exceed (net of any return representing return of capital of (but not return on) any such Permitted Acquisition) at any time outstanding$75,000,000; and
(l) Permitted Other Acquisitions and Permitted Acquisitions in addition to those made under paragraph (k) above in respect of which the aggregate amount of consideration paid after the date hereof (whether cash or property, as valued at the time such investment is made) does not exceed (net of any return representing return of capital of (but not return on) any such Permitted Other Acquisition or Permitted Acquisition) at any time $75,000,000.
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 or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Subsidiary prior to such mergermerger or consolidation) any Equity Interests in or 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsAcquisitions;
(c) investments by the Borrower and its Subsidiaries existing on the date hereof in the capital stock of its Subsidiaries and such other investments of the Borrower and its Subsidiaries existing on the date hereof and set forth on Schedule 6.046.01;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(e) loans or advances made by the Borrower in or to any Subsidiary and made by any Restricted Subsidiary in or to the Borrower or any other Subsidiary; PROVIDED Subsidiary (provided that the not more than an aggregate amount of such $15,000,000 in investments, loans or advances or capital contributions may be made and advances made remain outstanding, at any time, by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that which are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) abovenot Loan Parties);
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that ;
(if) a Restricted Subsidiary shall not Guarantee loans or advances to officers and directors of the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed Borrower or any of its Subsidiaries the Obligations net proceeds of which are used solely to purchase Equity Interests in the Borrower pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale a restricted stock or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) abovestock purchase plan;
(g) investments received loans or advances to officers and employees of the Borrower or any of its Subsidiaries (in connection with addition to those permitted by clause (f)), not at any time in excess of $5,000,000 thereof in the bankruptcy aggregate for the Borrower and its Subsidiaries;
(h) loans or reorganization ofadvances to, or settlement of delinquent accounts and disputes deposits with, customers contractors and suppliers, in each case suppliers in the ordinary course of businessbusiness not at any time in excess of $5,000,000;
(hi) Permitted Acquisitions; PROVIDED that any loan to a Person purchasing real property or equipment from any Borrower or any Subsidiary;
(j) investments consisting of promissory notes received as proceeds of asset dispositions permitted by Section 6.03;
(k) bank deposits in the sum ordinary course of business (i) with any Lender or (ii) with any other commercial banking institution so long as all deposits of the Borrower and its Subsidiaries permitted solely by this clause (k) do not at any time exceed $5,000,000 for more than ten consecutive days;
(l) investments, loans or advances in or to joint ventures so long as the aggregate amount of all consideration such investments, loans and advances made in any fiscal year does not exceed $15,000,000;
(m) Swap Agreements permitted under Section 6.05; and
(n) any other investment, loan or advance (other than common Equity Interests of Holdingsacquisitions) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued so long as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed in connection withsuch investments, or resulting from, Permitted Acquisitions (including Indebtedness of any acquired Persons outstanding at the time of the applicable Permitted Acquisition) shall loans and advances does not exceed, on a cumulative basis exceed $10,000,000 during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Rogers Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. (a) The Borrower will shall not, and will shall not permit any of its Restricted Material Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to before such merger) any Equity Interests Interest in or evidences 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, except:
(ai) the AcquisitionPermitted Investments and investments in cash;
(b) Permitted Investments;
(cii) investments existing on the date hereof and set forth on Schedule 6.04of this Agreement;
(diii) investments by the Borrower and its Restricted Material Subsidiaries in Equity Interests in their respective SubsidiariesSubsidiaries (or in any Person that will, upon the making of such investment, become a Subsidiary); PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of such investments by Loan Parties inthe Borrower and its Material Subsidiaries after the Effective Date in reliance on this clause (iii), and taken together with the aggregate amount of loans and advances made by Loan Parties tothe Borrower to Material Subsidiaries in reliance on clause (iv), and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 an amount at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)$60,000,000;
(eiv) loans or advances made by the Borrower to any Subsidiary and or made by any Restricted Material Subsidiary to the Borrower or any other Subsidiary; PROVIDED provided that the amount of such loans and advances made by Loan Parties the Borrower to Unrestricted Subsidiaries, or Subsidiaries shall be subject to Restricted Subsidiaries the limitation set forth in clause 6.04(a)(iii) above; and provided further that are Foreign Subsidiaries, the amount of such loans and advances made by a Material Subsidiary to another Subsidiary shall be subject to the limitations set forth in clause (d) aboveSection 6.06;
(fv) Guarantees constituting Indebtedness permitted Loans, letters of credit and other extensions of credit by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee Home Savings in the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee ordinary course 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) aboveits business;
(gvi) investments received in connection with (A) the bankruptcy bankruptcy, reorganization or reorganization recapitalization of, or settlement of delinquent accounts and disputes with, customers and supplierssuppliers or (B) foreclosure by the Borrower or any of its Subsidiaries with respect to any secured investment or other transfer of title with respect to any secured investment in default, in each case in the ordinary course of business;
(hvii) Permitted Acquisitions; PROVIDED that receivables owing to the sum Borrower or any Subsidiary if created or acquired in the ordinary course of all consideration (other than common Equity Interests of Holdings) paid business and payable or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, dischargeable in accordance with Section 2.11(c)customary trade terms;
(viii) payroll, travel and similar advances to make such Permitted Acquisitions) 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 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 applicable Permitted Acquisitionordinary course of business:
(ix) shall not exceed, on a cumulative basis during loans or advances to employees made in the term ordinary course of this Agreement, $50,000,000business consistent with past practices of the Borrower or such Subsidiary;
(x) investments in stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to the Borrower or any Material Subsidiary or in satisfaction of judgments;
(xi) investments in any Person to the extent such investment represents the non-cash portion of the consideration received for an asset sale permitted under Section 6.05;
(xii) investments in the Borrower;
(xiii) investments in any Person if, as a result of such investment, such other Person is merged with or consolidated into, or transfers or conveys all or substantially all its assets to, the Borrower or a Material Subsidiary, in each case subject to the limitations set forth in Section 6.04(b); and
(xiv) any direct or indirect advance, loan or other extension of credit to a Person to be used by such Person to acquire property pursuant to a transaction intended to qualify as a Like-Kind Exchange.
(b) The Borrower shall not, and shall not permit any of its Material Subsidiaries to make any material acquisition unless (i) immediately before and after giving effect thereto, no Default shall have occurred and be continuing, (ii) in the case of any investments acquisition of a Person, such acquisition is non-hostile, and (iii) the assets received by the Borrower or its Material Subsidiary in connection therewith are used or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by usable in a line of business that does not cause the covenant contained in Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding.6.03(b)
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and nor will not it permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly-Owned Subsidiary prior to such merger) any 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, except:
(a) the Acquisition;
(b) Permitted Investments;
(cb) investments existing on the date hereof and set forth on Schedule 6.04;
(c) investments, loans, advances and guarantees of and by the Liberty Group existing on the First Funding Date, which investments have not been procured by or approved by Borrower or its Subsidiaries other than the Liberty Group;
(d) investments by the Borrower and its Restricted the Subsidiaries in Equity Interests in of their respective Subsidiaries; PROVIDED , provided that (i) the aggregate amount of investments made pursuant to this clause (i) by Loan Parties in Subsidiaries (other than the Broker Dealer Subsidiaries and the RIE) that are not Loan Parties (together with outstanding intercompany loans permitted under clause (i) 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 $5,000,000 at any such Equity Interests time outstanding (in a Subsidiary held by a Loan Party each case determined without regard to any write-downs or write-offs), except that NAL shall be pledged pursuant permitted to the Pledge Agreement (subject make investments in Liberty to the limitations applicable to the pledge fund all or a portion of Equity Interests in Foreign Subsidiaries set forth in Section 5.12)a Liberty Bond Redemption, (ii) the aggregate amount of investments any investment made pursuant to this clause (ii) by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) in any Broker Dealer Subsidiary shall not exceed $25,000,000 the amount that is required at any the time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale investment to cause such Broker Dealer Subsidiary’s capital to be above the highest level at which dividends by such Broker Dealer Subsidiary may be restricted, other activities undertaken by such Broker Dealer Subsidiary may be limited or disposition) other regulatory actions with respect to such Broker Dealer Subsidiary may be taken, in each case by applicable Governmental Authorities based upon such capital, plus amounts not to exceed $5,000,000 in any fiscal year and (iii) the aggregate amount of investments any investment made pursuant to this clause (iii) by Loan Parties inParties, and loans and advances by Loan Parties todirectly or indirectly, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on in the Effective Date) RIE shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary amount that is a Foreign Subsidiary shall required at the time of such investment to cause the RIE’s capital to be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries above the highest level at which dividends by an amount equal the RIE may be restricted, other activities undertaken by the RIE may be limited or other regulatory actions with respect to the Net Proceeds of RIE may be taken, in each case by applicable Governmental Authorities based upon such sale or disposition)capital;
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED , provided that the amount of such loans and advances made pursuant to this clause (i) by Loan Parties to Unrestricted Subsidiaries, Subsidiaries (other than the Broker Dealer Subsidiaries or to Restricted Subsidiaries the RIE) that are Foreign Subsidiaries, shall be subject not Loan Parties (together with investments permitted under clause (i) of the proviso to the limitations set forth in clause paragraph (d) aboveof this Section and outstanding Guarantees permitted under the proviso to paragraph (f) of this Section) shall not exceed $5,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs), except that NAL shall be permitted to make loans or advances to Liberty to fund all or a portion of a Liberty Bond Redemption, (ii) the amount of any loan or advance made pursuant to this clause (ii) by Loan Parties to any Broker Dealer Subsidiary shall not exceed the amount that is required at the time of such loan or advance to cause such Broker Dealer Subsidiary’s capital to be above the highest level at which dividends by such Broker Dealer Subsidiary may be restricted, other activities undertaken by such Broker Dealer Subsidiary may be limited or other regulatory actions with respect to such Broker Dealer Subsidiary may be taken, in each case by applicable Governmental Authorities based upon such capital, plus amounts not to exceed $5,000,000 in any fiscal year and (iii) the amount of any loan or advance made pursuant to this clause (iii) by Loan Parties, directly or indirectly, to the RIE shall not exceed the amount that is required at the time of such loan or advance to cause the RIE’s capital to be above the highest level at which dividends by the RIE may be restricted, other activities undertaken by the RIE may be limited or other regulatory actions with respect to the RIE may be taken, in each case by applicable Governmental Authorities based upon such capital;
(f) Guarantees constituting of Indebtedness of the Borrower or any Subsidiary that are permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by the Borrower or any Loan Party shall be subject (together with investments permitted under clause (i) of the proviso to the limitations set forth in clause paragraph (d) aboveof this Section and intercompany loans permitted under clause (i) to the proviso to paragraph (e) of this Section) shall not exceed $5,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(g) 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 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 aggregate outstanding at any time (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;
(hj) Permitted Acquisitions; PROVIDED that investments in the sum form of all consideration Swap Agreements permitted by Section 6.07;
(other than common Equity Interests of Holdingsk) paid investments resulting from pledges or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events deposits described in clause (ac) or (d) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such “Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000Encumbrance”;
(il) investments received in connection with the disposition of any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions asset permitted by Section 6.05; and 95 90;
(jm) 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;
(n) the Liberty Equity Acquisitions and the Liberty Transaction;
(o) investments in the Depository Trust Clearing Corporation to the extent required by applicable law;
(p) 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, loan or advance is made and including all related commitments for future investments, loans or advances (and the principal amount of any Indebtedness that is assumed or otherwise incurred in connection with such investment, loan or advance), not exceeding $15,000,000 in the case of any single such investment, or $50,000,000 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 in, advances or loans (which amount shall not exceed the amount of such investment valued at cost at the time such investment was made);
(q) investments in TRF not to or Guarantees exceed $10,000,000 since the First Funding Date;
(r) investments made in connection with the Specified Liberty Restructuring Transactions made within twenty-four months of Indebtedness of, any Person the First Funding Date;
(s) additional investments in Liberty and its Subsidiaries in an aggregate amount not to exceed (x) $25,000,000 100.0 million per calendar year and (y) $200.0 million at any time outstandingoutstanding (provided that for purposes of determining compliance with this clause (y), the amount of such investments in Liberty and its Subsidiaries deemed outstanding shall be reduced by the amount of any dividends, distributions or other return on capital received by the Borrower and its wholly-owned Domestic Subsidiaries with respect to such investments (or, in the case of an investment that is a loan or advance, any principal repayment of such loan or advance)); and
(t) investments resulting from the Specified Subsidiary Restructuring Transactions; provided that this Section 6.04 shall not prohibit any repurchase of Indebtedness or Equity Interests of the Borrower by the Borrower, or any repurchase of Equity Interests or Indebtedness of any Subsidiary by such Subsidiary, in each case to the extent such repurchase is otherwise permitted by this Agreement.
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 Restricted the Subsidiaries to, purchaseacquire, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) ofhold, 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 unitInvestment, except:
(a) (i) Permitted Investments and (ii) Investments which were Permitted Investments when made but that no longer constitute Permitted Investments, solely to the Acquisitionextent such Permitted Investments under this clause (ii), cannot be divested without the Loan Parties and the Subsidiaries incurring material monetary penalties or losses;
(b) Permitted InvestmentsInvestments (other than loans and advances to Subsidiaries) in existence, or committed to be made, on the Effective Date and described in Schedule 6.04(b), and any renewal or extension thereof; provided that no such renewal or extension thereof shall increase the amount of such Investment except by an amount otherwise permitted by this Section 6.04 or change the fundamental nature of such Investment in a manner not otherwise permitted under this Section 6.04 (provided that if any other provision of this Section 6.04 is utilized for the foregoing purposes the related Investment shall be deemed to have been acquired, held, made or permitted to exist under such provision to the extent of such utilization);
(c) investments existing on Investments among the date hereof Borrowers and set forth on Schedule 6.04the Subsidiaries; provided that any Investment of any Loan Party in any Subsidiary that is not a Loan Party shall not in the aggregate exceed the amount of $400,000,000 at any time for all such Investments made after the Original Closing Date;
(d) investments by Guarantees of the Borrower and its Restricted Subsidiaries Company in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to respect of the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)Mexican Credit Facility;
(e) loans or advances made by the Borrower Company or the Subsidiaries to its employees and officers (and, solely with respect to travel and entertainment expenses, directors) in the ordinary course of business for travel and entertainment expenses, relocation costs, housing-related expenses, expenses associated with the procurement or sale of personal residences of key employees and officers and similar purposes up to a maximum of $5,000,000 in the aggregate at any Subsidiary one time outstanding, and advances of payroll payments and expenses made by any Restricted Subsidiary the Company or the Subsidiaries to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans employees and advances made by Loan Parties officers to Unrestricted Subsidiaries, or to Restricted Subsidiaries be treated as expenses for accounting purposes and that are Foreign Subsidiaries, shall be subject to made in the limitations set forth in clause (d) aboveordinary course of business and consistent with historical practice;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee Accounts and other trade credit extended in the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreementordinary course of business, (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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiariesnotes, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed stock or other securities issued by any Account Debtors to a Loan Party shall be subject pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in the limitations set forth ordinary course of business and (iii) Investments received in clause (d) above;
(g) investments received the ordinary course of business in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, or judgments against, or foreclosure or deed in lieu of foreclosure with respect to, customers and suppliers;
(g) Investments in the form of and arising out of Swap Agreements permitted by Section 6.07;
(h) Investments of any Person existing at the time such Person becomes a Subsidiary of a Borrower or consolidates or merges with a Borrower or any of the Subsidiaries (including in connection with a Permitted Acquisition) so long as such Investments were not made in contemplation of such Person becoming a Subsidiary or of such merger, and any renewal or extension thereof provided that no such renewal or extension thereof shall increase the amount of such Investment except by an amount otherwise permitted by this Section 6.04 or change the fundamental nature of such Investment in a manner not otherwise permitted under this Section 6.04 (provided that if any other provision of this Section 6.04 is utilized for the foregoing purposes the related Investment shall be deemed to have been acquired, held, made or permitted to exist under such provision to the extent of such utilization);
(i) Investments received in connection with the dispositions of assets in accordance with Section 6.05;
(j) Investments constituting deposits of cash and Permitted Investments to the extent such deposits are otherwise permitted under Section 6.02;
(k) Permitted Acquisitions not otherwise permitted by this Section 6.04; provided that both immediately before and after giving effect to the consummation of each such Permitted Acquisition, on a Pro Forma Basis, (i) Availability is not less than the greater of $250,000,000 or 30% of the Revolving Commitment and (ii) no Default or Event of Default shall have occurred and be continuing;
(l) Investments constituting loans and advances to contract growers (i) in an aggregate amount not to exceed $100,000,000 at any time outstanding and (ii) for reasonable expenses, in each case as incurred in the ordinary course of business;
(hm) Permitted Acquisitions; PROVIDED Investments made by any Captive Insurance Company permitted by the investment policies of such Captive Insurance Company which investment policies are set forth on Schedule 6.04(m), and all amendments, supplements and all other modifications thereto which are reasonably satisfactory to the Administrative Agent;
(n) Guarantees by the Company or any of the Subsidiaries that are consolidated with the sum Company on the Company’s financial statements of all consideration leases (other than common Equity Interests Capital Lease Obligations), accounts payable and accrued expenses of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price Company and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event Subsidiaries that are applieddo not constitute Indebtedness, in accordance with Section 2.11(c)each case, to make such Permitted Acquisitions) plus entered into in the aggregate principal amount ordinary course 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, on a cumulative basis during the term of this Agreement, $50,000,000business;
(o) Investments consisting of (i) any investments Intercompany IRBs and Guarantees in respect thereof, to the extent the incurrence (or loans to any other Person received the existence) of such Intercompany IRBs or Guarantees, as noncash consideration for salesapplicable, transfers, leases and other dispositions is permitted by Section 6.05; and 95 90
under paragraph (j) of Section 6.01, (ii) mergers and consolidations, purchases of all or substantially all assets of a Person and assumption of assets pursuant to a dissolution or liquidation of any Subsidiary, in each case to the extent such mergers, consolidations and purchase or assumption of such assets, as the case may be, are consummated pursuant to Section 6.03, (iii) any Restricted Payment to the extent made pursuant to Section 6.08 (other investments inthan paragraph (a)(v) thereof) and (iv) solely to the extent constituting an Investment, advances or loans to or Guarantees dispositions of Indebtedness of, assets contemplated in Section 6.09(c)(v) (other than clause (A)(2) thereof);
(p) [reserved];
(q) other Investments at any Person time outstanding in an aggregate amount not to exceed $25,000,000 10% of Consolidated Tangible Net Worth (which, for the purposes of this clause (q) shall be measured at the time such Investment is made);
(r) Investment in any Subsidiary that is a Captive Insurance Company in an amount not to exceed the sum of (i) the amounts needed by such Captive Insurance Company to maintain regulatory capital requirements plus (ii) such other amounts that are reasonably needed in order to insure the risks of the Borrowers and the Subsidiaries that such Captive Insurance Company is insuring;
(s) Investments in the Equity Interests of any Farm Credit System Institution that are required to be made pursuant to the governing documents of such Farm Credit System Institution in order for such Farm Credit System Institution to be a Lender; and
(t) other Investments in an aggregate amount not to exceed the amount available under the Additional Equity Interest Basket; provided that no Investment shall be permitted under this Section 6.04 if prohibited under Section 6.03. For purposes of this Section, the aggregate amount of an Investment at any time outstandingshall be deemed to be equal to (i) the aggregate amount of cash, together with the aggregate fair market value of property, loaned, advanced, contributed, transferred, or otherwise invested that gives rise to such Investment minus (ii) the aggregate amount of distributions or other repayments received in cash in respect of such Investment. The amount of an Investment shall not in any event be reduced by reason of any write off of such Investment nor increased by any increase in the amount of earnings retained in the Person in which such Investment is made or by any increase in the value of such Investment.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Restricted Subsidiary prior to such merger) any 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsAcquisitions;
(c) investments existing on the date hereof Effective Date and set forth on Schedule 6.04;
(d) investments by Holdings in Equity Interests of the Borrower and its Restricted by the Borrower and the Subsidiaries in Equity Interests in of their respective Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Collateral Agreement (subject to the limitations applicable to the pledge of Equity Interests of a Foreign Subsidiary and other applicable limitations referred to in Foreign Subsidiaries set forth in Section 5.12), the definition of the term “Collateral and Guarantee Requirement”) and (ii) the aggregate amount of investments made pursuant to this clause (d) by Loan Parties in, and loans and advances by in Subsidiaries that are not Loan Parties to, (together with outstanding intercompany loans permitted under clause (ii) to the proviso to paragraph (e) of this Section and outstanding Guarantees by Loan Parties permitted under the proviso to paragraph (f) of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Datethis Section) shall not exceed $25,000,000 50,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale each case determined without regard to any write-downs or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED , 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 Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject not Loan Parties pursuant to this clause (e) (together with investments permitted under clause (ii) of the limitations set forth in clause proviso to paragraph (d) aboveof this Section and outstanding Guarantees permitted under the proviso to paragraph (f) of this Section) shall not exceed $50,000,000 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; PROVIDED 6.01(a)(iv), provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with investments permitted under clause (ii) of the proviso to the limitations set forth in clause paragraph (d) aboveof this Section and intercompany loans permitted under clause (ii) to the proviso to paragraph (e) of this Section) shall not exceed $50,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(g) loans or advances to (x) officers and directors (or their respective spouses or estates) of Holdings, and (y) employees, officers and directors (or their respective spouses or estates) of the Borrower or any Subsidiary, in each case (i) made in the ordinary course of business, (ii) to facilitate the purchase of capital stock or options of Holdings or (iii) in connection with home relocation, not exceeding $5,000,000 in the aggregate outstanding at any time (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 Holdings, 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;
(hj) Permitted Acquisitions; PROVIDED that investments in the sum form of all consideration Swap Agreements permitted by Section 6.07;
(other than common Equity Interests k) investments of Holdings) paid any Person existing at the time such Person becomes a Subsidiary or otherwise delivered consolidates or merges with the Borrower or any Subsidiary (including in connection with a Permitted Acquisitions Acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger;
(including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds l) investments resulting from Prepayment Events pledges or deposits described in clause (ac) or (d) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such “Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000Encumbrance”;
(im) investments received in connection with the disposition of any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions asset permitted by Section 6.05; and 95 90;
(jn) 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 other Subsidiary deems reasonable under the circumstances;
(o) investments, loans and advances by the Borrower or any Subsidiary in or to Foreign Subsidiaries and foreign entities that are not Foreign Subsidiaries, in an aggregate amount, as valued at cost at the time each such investment, loan or advance is made and including all related commitments for future investments, loans or advances (and the principal amount of any Indebtedness that is assumed or otherwise incurred in connection with such investment, loan or advance), not exceeding in the aggregate for all such investments inmade from and after the Effective Date (plus an amount equal to any returns of capital, repayment of loans, advances or other Indebtedness, sale proceeds or other distributions actually received in cash in respect of any such investments) an amount equal to the sum of (i) $60,000,000 plus (ii) the amount of any equity contributions made to Holdings (and to the Borrower or the applicable Subsidiary as common equity) plus (iii) so long as (A) no Default or Event of Default has occurred and is continuing and (B) the Total Leverage Ratio as of the last day of the most recently ended fiscal quarter for which financial statements were delivered (or required to be delivered) pursuant to Section 5.01 to the Administrative Agent is less than or equal to 4.00:1.00, an amount not exceeding the Available Basket Amount on the date that such investment, loan or advance is made;
(p) investments by Borrower or any Subsidiary in Holdings for purposes and in amounts that would otherwise be permitted as Restricted Payments to Holdings pursuant to Section 6.08 or other payments to Holdings permitted pursuant to Section 6.09;
(q) other investments, loans and advances by the Borrower or any Subsidiary (other than any investment in or loan or advance to a Foreign Subsidiary or Guarantees of Indebtedness of, any Person foreign entity that is not a Foreign Subsidiary) in an aggregate amount, as valued at cost at the time each such investment, loan or advance is made and including all related commitments for future investments, loans or advances (and the principal amount of any Indebtedness that is assumed or otherwise incurred in connection with such investment, loan or advance), not exceeding in the aggregate for all such investments made from and after the Effective Date (plus an amount equal to any returns of capital, repayments of loans, advances or other Indebtedness, sale proceeds or other distributions actually received in cash in respect of any such investments) an amount equal to the sum of (i) $35,000,000 plus (ii) so long as (A) no Default or Event of Default has occurred and is continuing and (B) the Total Leverage Ratio as of the last day of the most recently ended fiscal quarter for which financial statements were delivered (or required to be delivered) pursuant to Section 5.01 to the Administrative Agent is less than or equal to 4:00:1.00, an amount not exceeding the Available Basket Amount on the date that such investment, loan or advance is made, plus (iii) any equity contributions made to exceed $25,000,000 at Holdings (the proceeds of which are contributed to the Borrower or the applicable Subsidiary as common equity other than the proceeds of any time outstandingSpecified Equity Contribution). The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment (other than adjustments for the repayment of, the refund or other distributions with respect to, the original principal amount of any such Investment).
Appears in 1 contract
Samples: First Lien Credit Agreement (Jda Software Group Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investments;
(c) investments and guarantees of Indebtedness of Foreign Subsidiaries existing on the date Effective Date hereof and set forth on Schedule 6.04;
(dc) investments by the Borrower and its Restricted the Subsidiaries that are Loan Parties in Equity Interests in their respective Subsidiaries that are Loan Parties and investments by Subsidiaries that are not Loan Parties in Equity Interests in their respective Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge voting stock of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed referred to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds definition of such sale or dispositionthe term "Collateral and Guarantee Requirement");
(ed) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED , provided that the amount of any such loans and advances made by a Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, Party shall be subject evidenced by a promissory note pledged pursuant to the limitations set forth in clause (d) abovePledge Agreement;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount 6.01 of Indebtedness of Unrestricted Subsidiaries, the Borrower or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Subsidiary Loan Party shall be subject to the limitations set forth in clause (d) aboveParty;
(gf) 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;
(hg) Permitted Acquisitions; PROVIDED , provided that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitionsconsideration) 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, on a cumulative basis during subsequent to the term of this AgreementEffective Date, $50,000,0005,000,000;
(ih) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; ;
(i) Guarantees by the Borrower and 95 90the Subsidiaries of leases entered into by any Subsidiary as lessee;
(j) any other extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;
(k) investments inin payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(l) loans or loans advances to or Guarantees employees made in the ordinary course of Indebtedness of, any Person business consistent with prudent business practice and not exceeding $500,000 in an the aggregate amount not to exceed $25,000,000 outstanding at any time outstanding.one time;
(m) 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;
(n) investments in the form of Hedging Agreements permitted under Section 6.07;
(o) investments by the Borrower or any Subsidiary in (i) the capital stock of a Receivables Subsidiary and (ii) other interests in a Receivables Subsidiary, in each case to the extent determined by the Borrower in its judgment to be reasonably necessary in connection with or required by the terms of the Permitted Receivables Financing;
(p) investments, loans, advances, guarantees and acquisitions resulting from a foreclosure by the Borrower or any Subsidiary with respect to any secured investment or other transfer of title with respect to any secured investment in default;
(q) investments, loans, advances, guarantees and acquisitions the consideration for which consists solely of shares of common stock of the Borrower; (r) investments in prepaid expenses, negotiable instruments held for collection and lease, utility, workers' compensation, performance and other similar deposits in the ordinary course of business; and
Appears in 1 contract
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiaries Subsidiary to, form any subsidiary after the Effective Date, or purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Restricted Subsidiary prior to such merger) any evidences of Indebtedness or 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 unitunit (whether through purchase of assets, merger or otherwise), except:
(a) Permitted Investments, subject to control agreements in favor of the AcquisitionLender or otherwise subject to a perfected security interest in favor of the Lender;
(b) Permitted Investmentsinvestments and loans in existence on the date hereof and described in Section 6.04 of the Disclosure Certificate;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower Borrowers and its Restricted their Subsidiaries not otherwise permitted under this Section 6.04 in Equity Interests in their respective Subsidiaries; PROVIDED , provided that (iA) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Security Agreement and (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (iiB) the aggregate amount of investments by Loan Parties in, and loans and advances by in Subsidiaries that are not Loan Parties to, (together with outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(d) and outstanding Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on permitted under the Effective Dateproviso to Section 6.04(e)) shall not exceed $25,000,000 the Investment Limit at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale each case determined without regard to any write-downs or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);
(ed) loans or advances made by the Borrower any Loan Party to any Subsidiary and made by any Restricted Subsidiary to the Borrower a Loan Party or any other Subsidiary; PROVIDED Subsidiary not otherwise permitted under this Section 6.04, provided that (A) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Security Agreement and (B) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject not Loan Parties (together with outstanding investments permitted under clause (B) to the limitations set forth proviso to Section 6.04(c) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed the Investment Limit at any time outstanding (in clause (d) aboveeach case determined without regard to any write-downs or write-offs);
(fe) Guarantees not otherwise permitted under this Section 6.04 constituting Indebtedness permitted by Section 6.01 and subject to Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with outstanding investments permitted under clause (B) to the limitations set forth in proviso to Section 6.04(c) and outstanding intercompany loans permitted under clause (dB) aboveto the proviso to Section 6.04(d)) shall not exceed the Investment Limit at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(f) loans or advances made by a Loan Party to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $50,000 at any one time outstanding;
(g) notes payable, or stock or other securities, issued by Account Debtors to a Loan Party pursuant to negotiated agreements with respect to settlement of such Account Debtor's Accounts in the ordinary course of business, consistent with past practices;
(h) investments in the form of Swap Agreements permitted by Section 6.07;
(i) investments of any Person existing at the time such Person becomes a Subsidiary of a Borrower or consolidates or merges with a Borrower or any of the Subsidiaries so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(j) investments received in connection with the disposition of assets permitted by Section 6.05;
(k) investments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances;”
(l) investments, purchases and Permitted Acquisitions as may be permitted by the terms of any Rider attached hereto.
(m) extensions of trade credit in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof from financially troubled Account Debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(n) any endorsement of a check or other medium of payment for deposit or collection through normal banking channels or similar transaction in the normal course of business;
(o) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes withwith or judgments against, customers and suppliers, in each case in the ordinary course of business;; and
(hp) Permitted Acquisitions; PROVIDED that advances in the sum form of all consideration (other than common Equity Interests a prepayment of Holdings) paid or otherwise delivered expenses in connection with Permitted Acquisitions (including the principal amount ordinary course of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) business of the definition of the term Prepayment Event that Loan Parties, so long as such expenses are applied, paid in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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 customary trade terms consistent with past business practices of the applicable Permitted Acquisition) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstandingLoan Party.
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 Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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 unitunit (whether through purchase of assets, merger or otherwise) (collectively, “Investments”), except:
(a) Permitted Investments, subject to, in the Acquisitioncase of Loan Parties, control agreements in favor of the applicable Collateral Agent (in each case for the benefit of the Agents, the Lenders and the Issuing Banks) or otherwise subject to a perfected security interest in favor of the applicable Collateral Agent (in each case for the benefit of the Agents, the Lenders and the Issuing Banks);
(b) Permitted Investmentsinvestments (and commitments (including consummation of any “put” arrangement in connection therewith) in respect thereof) in existence on the Third Amendment Effective dDate of this Agreement and described on Schedule 6.04 and renewals, replacements and extensions thereof;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower Loan Parties and its Restricted their Subsidiaries in Equity Interests in their respective Subsidiaries, and Specified Excluded Subsidiaries; PROVIDED provided that in the case of any investments made pursuant to this paragraph (c) after the RestatementThird Amendment Effective Date by Loan Parties in Subsidiaries that are not Loan Parties or are Specified Excluded Subsidiaries, both immediately before and immediately after giving pro forma effect thereto, no Default or Event of Default shall have occurred and be continuing and either (i) any (A) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such Equity Interests investment is to occur is at least 1.00 to 1.00 (determined on a Pro Forma Basis in a Subsidiary held by a Loan Party respect of the Test Period in effect at such time) and (B) Aggregate Availability shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), at least $250,000,000 or (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary Liquidity shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds at least $500,000,000, including Aggregate Availability of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)least $400,000,000;
(ed) loans or advances made by the (i) any Borrower to any Subsidiary and made by or Specified Excluded Subsidiary or any Restricted other Borrower or (ii) any Subsidiary to the any Borrower or any other Subsidiary or Specified Excluded Subsidiary; PROVIDED , provided that in the amount case of such any loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign not Loan Parties or to Specified Excluded Subsidiaries, both immediately before and immediately after giving pro forma effect thereto, no Default or Event of Default shall have occurred and be continuing and either (i) (A) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such investment is to occur is at least 1.00 to 1.00 (determined on a Pro Forma Basis in respect of the Test Period in effect at such time) and (B) Aggregate Availability shall be subject to the limitations set forth in clause at least $250,000,000 or (dii) aboveLiquidity shall be at least $500,000,000, including Aggregate Availability of at least $400,000,000;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee in the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee case 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, Subsidiaries or of Restricted Specified Excluded Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party Party, both immediately before and immediately after giving pro forma effect thereto, no Default or Event of Default shall have occurred and be continuing and either (i) (A) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such investment is to occur is at least 1.00 to 1.00 (determined on a Pro Forma Basis in respect of the Test Period in effect at such time) and (B) Aggregate Availability shall be at least $250,000,000 or (ii) Liquidity shall be at least $500,000,000, including Aggregate Availability of at least $400,000,000;
(f) investments made by any Loan Party in any Subsidiary that is not a Loan Party or which is a Specified Excluded Subsidiary of the types described in paragraphs (c), (d) and (e) of this Section 6.04; provided that both immediately before and after giving pro forma effect thereto, (i) no Default or Event of Default shall have occurred and be continuing and (ii) no Level 4 Minimum Aggregate Availability Period shall be in effect; provided further that the aggregate principal amount of all investments permitted by this paragraph (f) shall not exceed $75,000,000150,000,000 at any time outstanding.
(g) investments (including loans and advances) made by any Loan Party in any Subsidiary that is not a Loan Party or in a Specified Excluded Subsidiary; provided that (i) such investments are made in the ordinary course of business in connection with the Company’s and its Subsidiaries’ cash management systems and (ii) both immediately before and immediately after giving pro forma effect thereto, (i) no Default or Event of Default shall have occurred and be continuing and (ii) no Level 4 Minimum Aggregate Availability Period shall be in effect.
(h) loans or advances made by any Loan Party and the Subsidiaries to their employees on an arms’-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $10,000,00025,000,000 in the aggregate at any time outstanding;
(i) subject to the limitations set forth applicable provisions of any Security Agreements (including Sections 4.2(a) and 4.4 of the US Security Agreement), notes payable, or stock or other securities issued by Account Debtors to any Loan Party pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in clause (d) abovethe ordinary course of business, consistent with past practices;
(gj) investments or other obligations in the form of Swap Agreements permitted by Section 6.08;
(k) investments of any Person existing at the time such Person becomes a Subsidiary or consolidates or merges with a Borrower or any Subsidiary (including in connection with a Permitted Acquisition), so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(l) investments received in connection with the bankruptcy dispositions of assets permitted by Section 6.05;
(m) investments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”;
(n) Permitted Acquisitions; provided that both immediately before and immediately after giving pro forma effect thereto, (i) no Default or reorganization ofEvent of Default shall have occurred and be continuing, (ii) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such Permitted Acquisition is to occur shall be at least 1.00 to 1.00 (determined on a Pro Forma Basis in respect of the Test Period in effect at such time) and (iii) no Minimum Aggregate Availability Period shall be in effect;
(o) intercompany investments made in connection with the Foreign Reorganization, including any Indebtedness permitted under Section 6.01(m);
(p) option, warrant and similar derivative transactions entered into by the Company in connection with a Permitted Convertible Notes Offering;
(q) Guarantees by any Borrower or settlement any Subsidiary of delinquent accounts and disputes with, customers and suppliersleases or other obligations of any Borrower or any Subsidiary that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(hr) Permitted Acquisitionsinvestments made by Loan Parties in Subsidiaries that are not Loan Parties or in Specified Excluded Subsidiaries; PROVIDED provided that such investments are part of a series of substantially simultaneous investments by Loan Parties in other Loan Parties that results in substantially all the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) proceeds of the definition initial investment being invested, loaned or advanced in one or more Loan Parties; and
(s) other investments not otherwise permitted by this Section 6.04; provided that both immediately before and immediately after giving pro forma effect thereto, (i) no Default or Event of the term Prepayment Event Default shall have occurred and be continuing and (ii) no Level 4 Minimum Aggregate Availability Period shall be in effect; provided further that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed in connection with, or resulting from, Permitted Acquisitions investments permitted by this paragraph (including Indebtedness of any acquired Persons outstanding at the time of the applicable Permitted Acquisitions) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at 75,000,000150,000,000 in any time outstandingfiscal year of the Company.; and
Appears in 1 contract
Samples: Credit Agreement (Office Depot Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and nor will not it permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly-Owned Subsidiary prior to such merger) any 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsAcquisitions;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments, loans, advances and guarantees of and by the Liberty Group existing on the Funding Date, which investments have not been procured by or approved by Borrower or its Subsidiaries other than the Liberty Group;
(e) investments by the Borrower and its Restricted the Subsidiaries in Equity Interests in of their respective Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Collateral Agreement or, in the case of NAL, pursuant to a Foreign Pledge Agreement (in each case, subject to the limitations applicable to the pledge of Equity Interests of a Foreign Subsidiary and NAL referred to in Foreign Subsidiaries set forth in Section 5.12the definition of the term “Collateral and Guarantee Requirement”), (ii) the aggregate amount of investments made pursuant to this clause (ii) by Loan Parties in, in Subsidiaries (other than the Broker Dealer Subsidiaries and loans and advances by the RIE) that are not Loan Parties to, (together with outstanding intercompany loans permitted under clause (ii) to the proviso to paragraph (f) of this Section and outstanding Guarantees by Loan Parties permitted under the proviso to paragraph (g) of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Datethis Section) shall not exceed $25,000,000 5,000,000 at any time outstanding (it being understood thatin each case determined without regard to any write-downs or write-offs), for purposes of determining outstanding except that NAL shall be permitted to make investments in Unrestricted SubsidiariesLiberty to fund all or a portion of a Liberty Bond Redemption, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments any investment made pursuant to this clause (iii) by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) in any Broker Dealer Subsidiary shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary amount that is a Foreign required at the time of such investment to cause such Broker Dealer Subsidiary’s capital to be above the highest level at which dividends by such Broker Dealer Subsidiary may be restricted, other activities undertaken by such Broker Dealer Subsidiary may be limited or other regulatory actions with respect to such Broker Dealer Subsidiary may be taken, in each case by applicable Governmental Authorities based upon such capital, plus amounts not to exceed $5,000,000 in any fiscal year and (iv) the aggregate amount of any investment made pursuant to this clause (iv) by Loan Parties, directly or indirectly, in the RIE shall not exceed the amount that is required at the time of such investment to cause the RIE’s capital to be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries above the highest level at which dividends by an amount equal the RIE may be restricted, other activities undertaken by the RIE may be limited or other regulatory actions with respect to the Net Proceeds of RIE may be taken, in each case by applicable Governmental Authorities based upon such sale or disposition)capital;
(ef) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED , 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, (ii) the amount of such loans and advances made pursuant to this clause (ii) by Loan Parties to Unrestricted Subsidiaries, Subsidiaries (other than the Broker Dealer Subsidiaries or to Restricted Subsidiaries the RIE) that are Foreign Subsidiariesnot Loan Parties (together with investments permitted under clause (ii) of the proviso to paragraph (e) of this Section and outstanding Guarantees permitted under the proviso to paragraph (g) of this Section) shall not exceed $5,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs), except that NAL shall be subject permitted to make loans or advances to Liberty to fund all or a portion of a Liberty Bond Redemption, (iii) the amount of any loan or advance made pursuant to this clause (iii) by Loan Parties to any Broker Dealer Subsidiary shall not exceed the amount that is required at the time of such loan or advance to cause such Broker Dealer Subsidiary’s capital to be above the highest level at which dividends by such Broker Dealer Subsidiary may be restricted, other activities undertaken by such Broker Dealer Subsidiary may be limited or other regulatory actions with respect to such Broker Dealer Subsidiary may be taken, in each case by applicable Governmental Authorities based upon such capital, plus amounts not to exceed $5,000,000 in any fiscal year and (iv) the amount of any loan or advance made pursuant to this clause (iv) by Loan Parties, directly or indirectly, to the limitations set forth RIE shall not exceed the amount that is required at the time of such loan or advance to cause the RIE’s capital to be above the highest level at which dividends by the RIE may be restricted, other activities undertaken by the RIE may be limited or other regulatory actions with respect to the RIE may be taken, in clause (d) aboveeach case by applicable Governmental Authorities based upon such capital;
(fg) Guarantees constituting of Indebtedness of the Borrower or any Subsidiary that are permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with investments permitted under clause (ii) of the proviso to paragraph (e) of this Section and intercompany loans permitted under clause (ii) to the limitations set forth proviso to paragraph (f) of this Section) shall not exceed $5,000,000 at any time outstanding (in clause (d) aboveeach case determined without regard to any write-downs or write-offs);
(gh) 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 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 aggregate outstanding at any time (determined without regard to any write-downs or write-offs of such loans or advances);
(i) 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;
(j) 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;
(hk) Permitted Acquisitions; PROVIDED that investments in the sum form of all consideration Swap Agreements permitted by Section 6.07;
(other than common Equity Interests l) investments of Holdings) paid any Person existing at the time such Person becomes a Subsidiary or otherwise delivered consolidates or merges with the Borrower or any Subsidiary (including in connection with a Permitted Acquisitions Acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger;
(including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds m) investments resulting from Prepayment Events pledges or deposits described in clause (ac) or (d) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such “Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000Encumbrance”;
(in) investments received in connection with the disposition of any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions asset permitted by Section 6.05; and 95 90;
(jo) 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;
(p) the Liberty Equity Acquisitions and the Liberty Transaction;
(q) investments in the Depository Trust Clearing Corporation to the extent required by applicable law;
(r) 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, loan or advance is made and including all related commitments for future investments, loans or advances (and the principal amount of any Indebtedness that is assumed or otherwise incurred in connection with such investment, loan or advance), not exceeding $15,000,000 in the case of any single such investment, or $50,000,000 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 in, advances or loans (which amount shall not exceed the amount of such investment valued at cost at the time such investment was made);
(s) investments in TRF not to or Guarantees exceed $10,000,000 since the Funding Date;
(t) investments made in connection with the Specified Liberty Restructuring Transactions made within twenty-four months of Indebtedness of, any Person the Funding Date;
(u) additional investments in Liberty and its Subsidiaries in an aggregate amount not to exceed (x) $25,000,000 100.0 million per calendar year and (y) $200.0 million at any time outstandingoutstanding (provided that for purposes of determining compliance with this clause (y), the amount of such investments in Liberty and its Subsidiaries deemed outstanding shall be reduced by the amount of any dividends, distributions or other return on capital received by the Borrower and its wholly-owned Domestic Subsidiaries with respect to such investments (or, in the case of an investment that is a loan or advance, any principal repayment of such loan or advance)); and
(v) investments resulting from the Specified Subsidiary Restructuring Transactions; provided that this Section 6.04 shall not prohibit any repurchase of Indebtedness or Equity Interests of the Borrower by the Borrower, or any repurchase of Equity Interests or Indebtedness of any Subsidiary by such Subsidiary, in each case to the extent such repurchase is otherwise permitted by this Agreement.
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 or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly Owned Subsidiary prior to such merger) any Equity Interests in 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 unitunit (collectively, "Investments"), except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsInvestments existing on the Amendment/Restatement Effective Date and set forth on Schedule 6.5;
(c) investments existing intercompany Investments in the ordinary course of business made by the Borrower and its Subsidiaries in 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 aggregate amount of such Investments by Loan Parties from the Amendment/Restatement Effective Date through and set forth on Schedule 6.04including such date, net of any repayments of any such Investments, in or with respect to Subsidiaries that are not Wholly Owned Subsidiary Guarantors shall not exceed $75,000,000;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties to employees of Indebtedness of, Unrestricted Subsidiaries the Borrower or any Subsidiary in the ordinary course of business (including all such investmentsfor travel, loans, advances entertainment and Guarantees existing on relocation expenses) in an aggregate amount for the Effective Date) shall Borrower or any Subsidiary not to exceed $25,000,000 10,000,000 at any one time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.016.2; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee 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 56 62 Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer Disposition of the Equity Interests relevant Subsidiary or of such Restricted Subsidiary as a result substantially all of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrowerits assets, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Wholly Owned Subsidiary Guarantors that is Guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause paragraph (dc) above;
(f) Permitted Acquisitions;
(g) investments received in connection with Guarantees, not constituting Indebtedness permitted by Section 6.2, by the bankruptcy Borrower and its Subsidiaries of the Contractual Obligations of the Borrower or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of businessany Subsidiary Guarantor;
(h) Permitted Acquisitions; PROVIDED that intercompany Investments in any Wholly Owned Subsidiary created by the sum Borrower or any of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered 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 Acquisitions 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 the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events actions described in clause (a) Section 5.12, all at the expense of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000Loan Parties;
(i) Investments that are not permitted by any investments in or loans other paragraph of this Section, so long as, after giving effect to any other Person received as noncash consideration for salessuch Investment made on a particular date, transfers, leases the aggregate Consideration expended in connection with all such Investments from the Amendment/Restatement Effective Date through and other dispositions permitted by Section 6.05including such date shall not exceed $150,000,000; and 95 90and
(j) Permitted Subsidiary Acquisitions; provided that if any portion of the Consideration for such acquisition is payable other than in Inrange Common Stock, such payment is permitted by any other investments in, advances or loans to or Guarantees paragraph of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstandingthis Section.
Appears in 1 contract
Samples: Credit Agreement (SPX Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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) make any assets of any other Person constituting a business unitAcquisition, except:
(a) the Acquisition;
(b) Permitted Investments;
(cb) investments by the Borrower existing on the date hereof and set forth on Schedule 6.04in the capital stock of its Subsidiaries;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(ec) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(fd) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that ;
(e) Acquisitions, provided that: (i) a Restricted Subsidiary before and after giving pro forma effect thereto no Default exists or would be caused thereby and the representations and warranties contained in the Loan Documents shall not Guarantee be true and correct on and as of the Subordinated Debt unless date thereof (Aboth before and after such Acquisition is consummated as if made on the date such Acquisition is consummated, (ii) if such Restricted Subsidiary also Acquisition involves the acquisition of Equity Interests, the consummation of such Acquisition has Guaranteed been recommended by the Obligations pursuant Board of Directors and management of the target of such Acquisition, (iii) at least 5 Business Days’ prior to the Guarantee Agreementconsummation of such Acquisition, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable Borrower shall have provided to the Lenders than a certificate of a Financial Officer attaching pro forma computations acceptable to the subordination provisions of Administrative Agent to demonstrate compliance with all financial covenants hereunder, (iv) at least 5 Business Days’ prior to the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests consummation of such Restricted Subsidiary as Acquisition, the Borrower shall have delivered drafts all acquisition documents and other agreements and documents relating to such Acquisition which shall not materially differ from the final documentation for such Acquisition, and the Administrative Agent shall have completed a result satisfactory review thereof and completed such other due diligence satisfactory to the Administrative Agent, (v) both before and after giving effect to such Acquisition, the Borrower is and will be able to borrow at least $15,000,000 of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borroweradditional Revolving Loans, and (iivi) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, consideration paid or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(g) investments received payable in connection with the bankruptcy or reorganization ofany such Acquisition and permitted by this proviso, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of without limitation any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed in connection withtherewith, all guarantees or resulting fromother liabilities incurred in connection therewith, Permitted Acquisitions (including Indebtedness of any acquired Persons outstanding at the time of the applicable Permitted Acquisition) and all deferred payments and other direct or indirect consideration in connection therewith, shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at 50,000,000 for any time outstandingsingle Acquisition.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and nor will not it permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the Acquisition;
(b) Permitted Investments;
(cb) investments existing on the date hereof and (which investments shall, to the extent they exceed $500,000, be set forth on Schedule 6.04);
(c) [Reserved];
(d) investments by the Borrower and its Restricted the Subsidiaries in Equity Interests in their respective SubsidiariesSubsidiaries that exist immediately prior to any applicable transaction; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Guarantee and Collateral Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), extent required by this Agreement and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances that are not Loan Parties that have complied with the Collateral and Guarantees existing on Guarantee Requirement made after the Effective Date) Closing Date shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);$10,000,000
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Guarantee and Collateral Agreement and (ii) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above[Reserved];
(g) [Reserved];
(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;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90;
(j) Guarantees by the Borrower and the Subsidiaries of leases entered into by any Subsidiary as lessee; provided that the amount of such Guarantees made by Loan Parties to Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (d) above;
(k) extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;
(l) loans or advances to employees made in the ordinary course of business consistent with prudent business practice and not exceeding $50,000 in the aggregate outstanding at any one time;
(m) investments in the form of Hedging Agreements permitted under Section 6.07;
(n) [reserved];
(o) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(p) [Reserved]; and
(q) investments, loans or advances in addition to those permitted by the other investments in, advances or loans to or Guarantees clauses of Indebtedness of, any Person this Section 6.04 not exceeding in an the aggregate amount not to exceed $25,000,000 1,000,000 at any time outstanding, provided that no Default exists at the time that such investment, loan or advance is made or is caused thereby.
Appears in 1 contract
Samples: Second Lien Term Loan Credit Agreement (Horizon Global Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Borrowers will not, and each of Holdings and the Borrowers will not permit any of its Restricted subsidiaries that are Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the Acquisition;
(b) Permitted Investments;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by Holdings, the Borrower Borrowers and its Restricted the Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in held by Holdings, either Borrower or a Subsidiary held by a Loan Party shall shall, to the extent required by the Collateral and Guarantee Requirement, be pledged pursuant to the applicable Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in or Foreign Subsidiaries set forth in Section 5.12), Security Agreement and (ii) the aggregate amount of investments made after the Effective Date by Core Loan Parties in, and loans and advances outstanding at any time by Core Loan Parties to, and Guarantees outstanding at any time by Core Loan Parties of Indebtedness of, Unrestricted Subsidiaries that are not Core Loan Parties (including all such investments, loans, advances and Guarantees existing on the Effective Datedate hereof and all investments made in, outstanding loans and advances to, and outstanding Guarantees of Indebtedness of, any Permitted Spinoff Subsidiary that were made at a time when such Permitted Spinoff Subsidiary was a Core Loan Party) shall not exceed $25,000,000 150,000,000 at any time outstanding outstanding, provided that (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, x) the sale or disposition by a Loan Party of an total investment in an Unrestricted a Permitted Spinoff Subsidiary shall will be deemed to reduce investments be reduced by the fair market value of any Publicly Traded Equity Securities held by any Core Party and received from the Permitted Spinoff in Unrestricted Subsidiaries by an amount equal to the Net Proceeds respect of such sale or dispositionPermitted Spinoff Subsidiary (determined in good faith by a Financial Officer of Holdings at the time of such Permitted Spinoff) and (iiiy) the aggregate amount total investment in SAN Holdings, Tape Holdings or HDD Holdings, as applicable, shall not include loans, capital contributions and other payments to SAN Holdings, Tape Holdings or HDD Holdings to permit SAN Holdings, Tape Holdings or HDD Holdings, as applicable, to make (or the subordinated Guarantee by HDD Holdings of investments Tape Holdings's obligation to make) Permitted Liquidity Event Distributions permitted by Loan Parties in, and loans and advances by Loan Parties Section 6.08(a) (v) to, and Guarantees by Loan Parties of Indebtedness or for the account of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments participants in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)their respective Deferred Compensation Plans;
(e) loans or advances made by Holdings to either Borrower or to any Subsidiary, made by either Borrower to the Borrower other Borrower, to any Subsidiary or to Holdings and made by any Restricted Subsidiary to the Holdings, either Borrower or any other Subsidiary; PROVIDED , provided that (i) any such loans and advances made by Holdings, either Borrower or a Subsidiary Loan Party shall be evidenced by a promissory note and, to the extent required by the Collateral and Guarantee Requirement, shall be pledged pursuant to the applicable Pledge Agreement or Foreign Security Agreement and (ii) the amount of such loans and advances made by Core Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Core Loan Parties shall be subject to the limitations limitation set forth in clause (dd)(ii) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not provide Guarantee of the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed provided a Guarantee of the Obligations pursuant to the a Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale any release or transfer termination of such Guarantee of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Core Loan Parties that is Guaranteed by any Core Loan Party shall be subject to the limitations limitation set forth in clause (dd)(ii) above;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED , provided that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitionsconsideration) 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, on a cumulative basis during the term of this Agreement, $50,000,000200,000,000 plus the aggregate Net Proceeds received by Holdings, either Borrower or any Subsidiary after the date hereof from any capital contribution or issuance of Equity Interests that are applied to effect Permitted Acquisitions;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90, including Publicly Traded Equity Securities received by Holdings, Seagate Software (Cayman) Holdings, Seagate SAN or Investment Holdings as consideration for any sale permitted by Section 6.05(c);
(j) Guarantees by the Borrowers and the Subsidiaries of leases other than Capital Lease Obligations entered into by any Subsidiary as lessee;
(k) extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;
(l) investments in payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(m) loans or advances to employees, directors and officers not exceeding $5,000,000 in the aggregate at any one time outstanding, in each case, made in the ordinary course of business consistent with prudent business practice;
(n) investments in or acquisitions of stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to either Borrower or any Subsidiary or in satisfaction of judgments;
(o) investments in the form of Hedging Agreements and treasury locks permitted under Section 6.07;
(p) investments, loans, advances, guarantees and acquisitions resulting from a foreclosure by Holdings, either Borrower or any Subsidiary with respect to any secured investment or other transfer of title with respect to any secured investment in default;
(q) investments, loans, advances, guarantees and acquisitions the consideration for which consists solely of shares of common stock of Holdings;
(r) Strategic Investments of Holdings in an amount not to exceed the sum of (i) $70,000,000 and (ii) any Net Proceeds received by Holdings, either Borrower or any Subsidiary (other than a Permitted Spinoff Subsidiary) from sales after the date hereof of (A) existing investments inin an Investment Business, advances (B) future Strategic Investments made pursuant to this paragraph (r) or loans (C) assets received as the consideration for any sale referred to in clause (A) or Guarantees (B) above, in each case not otherwise used (1) for a purpose that would result in a reduction in Net Proceeds or in the amount of Indebtedness ofprepayments required pursuant to Section 2.11, any Person (2) to prepay the Loans in accordance with Section 2.11 or (3) to make a Permitted Liquidity Event Distribution;
(s) capital contributions to CacheVision in an aggregate amount not to exceed $25,000,000 20,000,000;
(t) capital contributions to E2 Open in an aggregate amount not to exceed $12,500,000;
(u) prepayments or advances to vendors or suppliers of semiconductors in connection with any guarantee of supply by, or to fund the expansion of supply capacity by, such vendor or supplier, in an aggregate amount not to exceed $50,000,000 at any one time outstanding;
(v) loans, capital contributions and other payments to SAN Holdings, Tape Holdings or HDD Holdings to permit SAN Holdings, Tape Holdings or HDD Holdings, as applicable, to make (and the subordinated Guarantee by HDD Holdings of Tape Holdings's obligation to make) Permitted Liquidity Event Distributions permitted by Section 6.08(a) (v)to, or for the account of, participants in their respective Deferred Compensation Plans;
(w) capital contributions to Denmark Holdings or Netherlands Holdings in an aggregate amount not to exceed $35,000,000, provided that (i) each such capital contribution is made in cash and (ii) on the same day that any such capital contribution is made, either (A) Denmark Holdings shall contribute in cash the full amount of such capital contribution to a Core Loan Party organized under the laws of Mexico or Japan as common equity or (B) Denmark Holdings shall contribute in cash the full amount of such capital contribution to Netherlands Holdings as common equity and Netherlands Holdings shall contribute in cash the full amount of such capital contribution to a Core Loan Party organized under the laws of Mexico or Japan as common equity; and
(x) loans and advances to continuing members of management of Holdings, the Borrowers and the Subsidiaries in an aggregate principal amount not to exceed $10,000,000, provided that (i) the proceeds of such loans and advances are contributed to Holdings by such members of management as part of the Equity Contribution, (ii) such loans and advances are not reduced, forgiven or otherwise terminated in whole or in part except upon repayment thereof in full and in cash to the applicable Loan Party and (iii) such loans and advances are repaid in full and in cash within 90 days after the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Seagate Technology Malaysia Holding Co Cayman Islands)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Subsidiary prior to such mergermerger or consolidation) any Equity Interests in or 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsAcquisitions;
(c) investments by the Borrower and its Subsidiaries existing on the date hereof in the capital stock of its Subsidiaries and such other investments of the Borrower and its Subsidiaries existing on the date hereof and set forth on Schedule 6.046.01;
(d) investments investments, loans, advances or capital contributions made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries made by any Subsidiary in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant or to the Pledge Agreement Borrower or any other Subsidiary (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) provided that the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 capital contributions that are made and remain outstanding, at any time outstanding (it being understood thattime, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by to Subsidiaries which are not Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall does not exceed 510% of Consolidated Total Assets at (determined as of the last day of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or Section 5.01(b) (or, prior to the delivery of any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiariessuch financial statements, the sale or disposition by a Loan Party last day of an investment the last fiscal quarter included in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed the financial statements referred to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionSection 3.04(a));
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that ;
(if) a Restricted Subsidiary shall not Guarantee loans or advances to officers and directors of the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed Borrower or any of its Subsidiaries the Obligations net proceeds of which are used solely to purchase Equity Interests in the Borrower pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale a restricted stock or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) abovestock purchase plan;
(g) investments received loans or advances to officers and employees of the Borrower or any of its Subsidiaries (in connection with addition to those permitted by clause (f)), not at any time in excess of $10,000,000 thereof in the bankruptcy aggregate for the Borrower and its Subsidiaries;
(h) loans or reorganization ofadvances to, or settlement of delinquent accounts and disputes deposits with, customers contractors and suppliers, suppliers in each case the ordinary course of business not at any time in excess of $10,000,000;
(i) any loan to a Person purchasing or leasing real property or equipment from any Borrower or any Subsidiary;
(j) investments consisting of promissory notes received as proceeds of asset dispositions permitted by Section 6.03;
(k) bank deposits in the ordinary course of business;
(hl) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid investments, loans or otherwise delivered advances in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued or to joint ventures so long as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed such investments, loans and advances made in connection with, or resulting from, Permitted Acquisitions (including Indebtedness of any acquired Persons outstanding at the time of the applicable Permitted Acquisition) shall fiscal year does not exceed, on a cumulative basis during the term of this Agreement, exceed $50,000,00030,000,000;
(im) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions Swap Agreements permitted by under Section 6.05; and 95 90;
(jn) any other investments inconsisting of the redemption, advances purchase, repurchase or loans to or Guarantees retirement of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding.Equity Interests permitted under Section 6.07;
Appears in 1 contract
Samples: Credit Agreement (Rogers Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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) make any assets of any other Person constituting a business unitAcquisition, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investments;
(c) investments existing on the date hereof Original Effective Date and set forth on Schedule 6.04;
(dc) investments by the Parent Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiariesany Subsidiary, including in connection with the formation or creation of any additional Subsidiary; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party (other than Equity Interests of an Excluded Global Subsidiary that are not required to be pledged in order for the representation in Section 3.18(c) to be correct) shall be pledged pursuant to the applicable Pledge Agreement (subject to the limitations applicable to the pledge of voting Equity Interests of a Foreign Subsidiary referred to in Foreign Subsidiaries set forth in Section 5.12), clause (b) of the definition of “Collateral and Guarantee Requirement”) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Subsidiaries that are not Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including excluding (A) all such investments, loans, loans and advances and Guarantees existing on the Original Effective Date, and extensions, refinancings, restatements or modifications thereof that do not increase the aggregate amount thereof, (B) loans and advances made in cash that are evidenced by promissory notes pledged pursuant to the applicable Pledge Agreement, provided that (1) the proceeds of such loans and advances are not used to finance a Permitted Acquisition and (2) at the time of and after giving effect to any such loan or advance, the total Revolving Commitments exceeds the sum of the total Revolving Exposure and the Local Currency Exposure by at least $100,000,000, (C) cash investments in Equity Interests in Subsidiaries that are not Loan Parties made substantially simultaneously with or promptly following receipt of, and in an aggregate amount not exceeding the amount of, a cash distribution received by a Loan Party in respect of any Equity Interests in a Subsidiary that is not a Loan Party or in any joint venture, (D) investments, loans and advances to Subsidiaries that are not Loan Parties made substantially simultaneously with or promptly following receipt by any Loan Party of the proceeds from, and made with such proceeds from, the sale of Equity Interests of, or dissolution of, any joint venture or of any Subsidiary or Subsidiaries that are not Subsidiary Loan Parties and do not give rise to a Prepayment Event, (E) any assumption, by a Subsidiary (the “Assuming Subsidiary”) that is not a Loan Party, of Indebtedness of a Subsidiary that is not a Loan Party (the “Transferring Subsidiary”), owing to a Loan Party that is represented by a promissory note issued to such Loan Party (the “Lending Subsidiary”) and pledged pursuant to the applicable Pledge Agreement, provided that (1) the Assuming Subsidiary shall as promptly as is practicable issue a replacement promissory note representing such Indebtedness to the Lending Subsidiary, which promissory note shall, promptly after such issuance, be pledged pursuant to the applicable Pledge Agreement, (2) the Transferring Subsidiary shall not be released from its Indebtedness pursuant to its promissory note to the Lending Subsidiary until the promissory note issued by the Assuming Subsidiary has been pledged pursuant to the applicable Pledge Agreement, (3) the promissory note issued by the Transferring Subsidiary shall be canceled and deemed fully satisfied as promptly as practicable after the promissory note issued by the Assuming Subsidiary has been pledged pursuant to the applicable Pledge Agreement, (4) such transactions do not involve any additional payment or other consideration from any Loan Party to any Subsidiary that is not a Loan Party that is not otherwise permitted pursuant to this Agreement and (5) for purposes of determining compliance with the limitations in the other clauses of this paragraph, any such promissory note issued in reliance upon this clause (E) shall be treated as outstanding under the clause or clauses of this paragraph under which the canceled and satisfied promissory notes were permitted and (F) Indebtedness of a Foreign Subsidiary to the extent supported by a Letter of Credit and satisfying the other criteria described in the proviso to clause (xii) of Section 6.01(a), but including Indebtedness of a Foreign Subsidiary to the extent supported by a Letter of Credit but not satisfying one or more of the other criteria described in the proviso to clause (xii) of Section 6.01(a)) shall not exceed $25,000,000 75,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments that compliance with the limitation set forth in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary this clause shall be deemed determined based on the amount of cash or fair market value of other assets invested as of the date of investment, without giving effect to reduce investments any fluctuations in Unrestricted Subsidiaries by an amount equal to the Net Proceeds value of such sale investment not attributable to dividends, distributions, repayments or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionredemptions);
(ed) loans or advances made by the Parent Borrower to any Subsidiary and made by any Restricted Subsidiary to the Parent Borrower or any other Subsidiary; PROVIDED provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the applicable Pledge Agreement and (ii) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (dclause(c) above;
(fe) Guarantees by the Parent Borrower of Indebtedness or other obligations of any Subsidiary and by any Subsidiary of Indebtedness or other obligations of the Parent Borrower or any other Subsidiary and other Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) a Restricted Subsidiary that is not a Loan Party shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee any Indebtedness or other obligations 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the BorrowerLoan Party, and (ii) except for Guarantees made under the aggregate principal amount of Indebtedness of Unrestricted SubsidiariesLoan Documents, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any a Subsidiary Loan Party shall be subject to not Guarantee any Indebtedness or other obligations of a Subsidiary that is not a Loan Party (but the limitations set forth in clause (d) aboveParent Borrower may Guarantee any Indebtedness of any Subsidiary);
(gf) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers;
(g) Permitted Acquisitions; provided that (i) the consideration therefor shall consist solely of shares of capital stock of the Parent Borrower, Monetary Acquisition Consideration or a combination thereof, (ii) the aggregate Monetary Acquisition Consideration in respect of all such Permitted Acquisitions (other than Monetary Acquisition Consideration that does not constitute Limited Expenditures as determined in accordance with the definition of the term “Limited Expenditures”) shall not exceed $10,000,000, (iii) after giving effect thereto, any Monetary Acquisition Consideration that constitutes Limited Expenditures shall be permitted by Section 6.12 and (iv) the amount of Monetary Acquisition Consideration for any Permitted Acquisition that results in any Subsidiary or Subsidiaries that are not Subsidiary Loan Parties shall be subject to the limitation set forth in clause (c) above (with the amount of such Monetary Acquisition Consideration to be allocated ratably among the assets and businesses acquired pursuant to a Permitted Acquisition for this purpose, based on the fair value thereof, as reasonably determined by a Financial Officer of the Parent Borrower and certified to the Administrative Agent, and the amount so allocated to Subsidiaries that are not Subsidiary Loan Parties being treated as investments therein for purposes of such limitation);
(h) investments in joint ventures (i) made from the cash proceeds realized from the sale or dissolution after the Original Effective Date of investments existing as of the Original Effective Date in Equity Interests in joint ventures, (ii) made substantially simultaneously with or promptly following receipt of, and in an aggregate amount not exceeding the amount of, a cash distribution received after the Original Effective Date by the Parent Borrower or a Subsidiary in respect of any Equity Interests in a joint venture (other than cash distributions representing a return of capital in respect of an investment made on or after the Original Effective Date), or (iii) not exceeding $125,000,000 in the aggregate for all other such investments outstanding at any time; provided that (A) such joint ventures shall not have any Indebtedness at any time on or after the date that an investment is made therein that is with recourse to the Parent Borrower or any of its Subsidiaries, (B) the documentation governing any such joint venture does not contain a restriction on distributions to the Parent Borrower or any Subsidiary, (C) each case such joint venture is engaged only in a business in which the Parent Borrower and its Subsidiaries would be permitted to engage as provided in Section 6.03(b) and (D) amounts realized in respect of investments in joint ventures that are reinvested in Subsidiaries that are not Loan Parties as contemplated by sub-clauses (C) and (D) of clause (c) above shall not be eligible for reinvestment in any joint venture pursuant to this clause (h);
(i) investments received as noncash consideration in respect of sales, transfers or dispositions permitted by Section 6.05;
(j) accounts receivable arising and deposits made in the ordinary course of business of the Parent Borrower and the Subsidiaries;
(k) Swap Agreements permitted under Section 6.07;
(l) loans and advances to officers and employees of the Parent Borrower or its Subsidiaries in accordance with prior practices;
(m) Guarantees by the Parent Borrower of Swap Agreements and other obligations incurred by any Subsidiary in the ordinary course of business;
(hn) Permitted Acquisitions; PROVIDED Guarantees by any Foreign Subsidiary that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount is not a Loan Party of any Indebtedness issued as deferred purchase price and the fair market value obligations of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000its Subsidiaries;
(o) any purchase, repurchase or acquisition of Indebtedness expressly permitted by Section 6.08(b); provided that any Indebtedness so purchased, repurchased or acquired is promptly retired and cancelled;
(p) any purchase, repurchase or acquisition by the Parent Borrower or any Subsidiary of outstanding loans or advances owed by the Parent Borrower to any Subsidiary or owed by any Subsidiary to the Parent Borrower or any other Subsidiary; provided that (i) any such purchase, repurchase or acquisition made from a Loan Party by a Subsidiary that is not a Loan Party shall be made for (A) cash in an amount not less than the outstanding principal amount thereof, (B) an equal principal amount of Indebtedness owed by a Loan Party to a Subsidiary that is not a Loan Party or (C) the cancellation of an equal principal amount of Indebtedness owed by such Loan Party to a Subsidiary that is not a Loan Party (or any combination of the foregoing), and (ii) any such purchase, repurchase or acquisition by a Loan Party from a Subsidiary that is not a Loan Party shall comply with Section 6.09;
(q) Capital Expenditures otherwise permitted by this Agreement;
(r) capital stock of the Parent Borrower acquired pursuant to a Restricted Payment permitted by this Agreement and held as treasury stock;
(s) acquisitions and asset swaps in the ordinary course of business that are described in Schedule 6.04;
(t) investments that are part of any Brazil Transaction;
(u) investments that are part of any Florida Land Transaction or investments in any Florida Land Subsidiary; provided that the aggregate net book value of all assets of the Parent Borrower and its Subsidiaries subject to Florida Land Transactions consummated since the Restatement Effective Date and all such investments shall not exceed $150,000,000 in the aggregate; provided further that the net book value of any such asset shall be its net book value as of the date of the most recent available internal financial statements of the Parent Borrower and its consolidated Subsidiaries prior to the Florida Land Transaction involving such asset or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90the making of such investment;
(jv) Guarantees of the Parent Borrower or any of its Subsidiaries consisting of take-or-pay obligations contained in supply agreements entered into in the ordinary course of business, including the Xxxxxxxx Ammonia Offtake Agreement; and
(w) other investments in, advances or loans to or Guarantees of Indebtedness of, any Person made after the Original Effective Date in an aggregate amount not to exceed exceeding $25,000,000 50,000,000 at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Mosaic Co)
Investments, Loans, Advances, Guarantees and Acquisitions. The None of the Parent Borrower, any Subsidiary Loan Party or any Foreign Subsidiary Borrower will, nor will not, and will not they permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the Acquisition;
(b) Permitted Investments;
(cb) investments existing on the date hereof and set forth on Schedule 6.046.04 to the Original Credit Agreement and investments in TriMas and its subsidiaries existing immediately after the consummation of the TriMas Transaction;
(c) Permitted Acquisitions;
(d) investments by the Parent Borrower and its Restricted the Subsidiaries in Equity Interests in their respective SubsidiariesSubsidiaries that exist immediately prior to any applicable transaction; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject or any applicable Foreign Security Documents, as the case may be, to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), extent required by this Agreement and (ii) the aggregate amount of investments (excluding any such investments, loans, advances and Guaranties to such Subsidiaries that are assumed and exist on the date any Permitted Acquisition is consummated and that are not made, incurred or created in contemplation of or in connection with such Permitted Acquisition) by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on not Domestic Loan Parties made after the Effective Date) Date shall not exceed 5% of Total Assets Holdings' consolidated total assets determined in accordance with GAAP at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(e) loans or advances made by the Parent Borrower to any Subsidiary and made by any Restricted Subsidiary to the Parent Borrower or any other Subsidiary; PROVIDED provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement and (ii) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that 6.01(a)(x);
(ig) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary investments arising as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) abovePermitted Receivables Financing;
(gh) investments constituting permitted Capital Expenditures under Section 6.15;
(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;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(ij) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90;
(jk) Guarantees by the Parent Borrower and the Subsidiaries of leases entered into by any Subsidiary as lessee; provided that the amount of such Guarantees made by Loan Parties to Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (d) above;
(l) extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;
(m) loans or advances to employees made in the ordinary course of business consistent with prudent business practice and not exceeding $5,000,000 in the aggregate outstanding at any one time;
(n) investments in the form of Hedging Agreements permitted under Section 6.07;
(o) investments by the Parent Borrower or any Subsidiary in (i) the capital stock of a Receivables Subsidiary and (ii) other investments ininterests in a Receivables Subsidiary, in each case to the extent required by the terms of the Permitted Receivables Financing;
(p) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business; and
(q) investments, loans or loans advances in addition to or Guarantees of Indebtedness of, any Person those permitted by clauses (a) through (p) above not exceeding in an the aggregate amount not to exceed $25,000,000 at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Metaldyne Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The None of the Parent Borrower or any Foreign Subsidiary Borrower will, nor will not, and will not they permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the Acquisition;
(b) Permitted Investments;
(cb) investments existing on the date hereof and set forth on Schedule 6.04;
(c) Permitted Acquisitions;
(d) investments by the Parent Borrower and its Restricted the Subsidiaries in Equity Interests in their respective SubsidiariesSubsidiaries that exist immediately prior to any applicable transaction; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject or any applicable Foreign Security Documents, as the case may be, to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), extent required by this Agreement and (ii) the aggregate amount of investments (excluding any such 509265-1724-13879091 investments, loans, advances and Guarantees to such Subsidiaries that are assumed and exist on the date any Permitted Acquisition is consummated and that are not made, incurred or created in contemplation of or in connection with such Permitted Acquisition) by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on that are not Domestic Loan Parties made after the Restatement Effective Date) Date shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)$80,000,000;
(e) loans or advances made by the Parent Borrower to any Subsidiary and made by any Restricted Subsidiary to the Parent Borrower or any other Subsidiary; PROVIDED provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement and (ii) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that 6.01(a)(viii);
(ig) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary investments arising as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) abovePermitted Receivables Financing;
(gh) [Reserved];
(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;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(ij) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90;
(jk) Guarantees by Holdings, the Parent Borrower and the Subsidiaries of leases entered into by any Subsidiary as lessee; provided that the amount of such Guarantees made by Loan Parties to Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (d) above;
(l) extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;
(m) loans or advances to employees made in the ordinary course of business consistent with prudent business practice and not exceeding $5,000,000 in the aggregate outstanding at any one time;
(n) investments in the form of Hedging Agreements permitted under Section 6.07;
(o) investments by the Parent Borrower or any Subsidiary in (i) the capital stock of a Receivables Subsidiary and (ii) other interests in a Receivables Subsidiary, in each case to the extent required by the terms of the Permitted Receivables Financing;
(p) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business; 509265-1724-13879091
(q) Permitted Joint Venture and Foreign Subsidiary Investments;
(r) investments, loans or advances in addition to those permitted by clauses (a) through (q) above not exceeding in the aggregate $50,000,000 at any time outstanding;
(s) investments in, advances made (i) with the Net Proceeds of any issuance of Equity Interests in Holdings or loans to (ii) with Equity Interests in Holdings; and
(t) investments by the Parent Borrower or Guarantees of Indebtedness of, any Person Subsidiary in an aggregate amount not to exceed $25,000,000 at any time outstandingthe Available Amount.
Appears in 1 contract
Samples: Credit Agreement (Trimas Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted 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 Restricted Subsidiary prior to such merger) any Equity Interests in or 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 unitunit (whether through purchase of assets, merger or otherwise), except:
(a) the AcquisitionPermitted Investments and Permitted Acquisitions;
(b) Permitted Investmentsinvestments in existence on the date of this Agreement and described in Schedule 6.04;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower and its Restricted the Subsidiaries (other than Permitted Joint Ventures) in Equity Interests in their respective Subsidiaries; PROVIDED Subsidiaries (other than Permitted Joint Ventures), provided that (iA) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Security Agreement (subject to the limitations applicable to the pledge common stock of Equity Interests in a Foreign Subsidiaries set forth Subsidiary referred to in Section 5.12), 5.11) and (iiB) the aggregate amount of investments by Loan Parties in, and loans and advances by in Subsidiaries (other than Permitted Joint Ventures) that are not Loan Parties to, (together with outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(d) and outstanding Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on permitted under the Effective Dateproviso to Section 6.04(e)) shall not exceed $25,000,000 1,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(ed) loans or advances made by the Borrower to any Subsidiary and (other than Permitted Joint Ventures), Guarantees by the Borrower of the obligations (other than Indebtedness) of any Subsidiary (other than Permitted Joint Ventures), loans or advances made by any Restricted Subsidiary (other than Permitted Joint Ventures) to the Borrower or to any other Subsidiary; PROVIDED Subsidiary (other than Permitted Joint Ventures), or Guarantees by any Subsidiary (other than Permitted Joint Ventures) of the obligations (other than Indebtedness) of the Borrower or of any Subsidiary (other than Permitted Joint Ventures), provided that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiariesto, or to Restricted Guarantees made by Loan Parties of the obligations of, Subsidiaries that are Foreign Subsidiaries, shall be subject not Loan Parties (together with outstanding investments permitted under clause (B) to the limitations set forth in clause (dproviso to Section 6.04(c) aboveand outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $1,000,000 at any time outstanding;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries (other than Permitted Joint Ventures) that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with outstanding investments permitted under clause (B) to the limitations set forth in proviso to Section 6.04(c) and outstanding intercompany loans permitted under clause (dB) aboveto the proviso to Section 6.04(d)) shall not exceed $1,000,000 at any time outstanding;
(f) loans or advances made by the Borrower or any Subsidiary to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $500,000 in the aggregate at any one time outstanding;
(g) 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;
(h) investments received in connection with the bankruptcy or reorganization of, or settlement dispositions of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of businessassets permitted by Section 6.05;
(hi) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events investments constituting deposits described in clause clauses (ac) and (d) of the definition of the term Prepayment Event “Permitted Encumbrances”;
(j) (i) acquisitions, formation or ownership of Equity Interests in one or more Permitted Joint Ventures or First Tier Foreign Subsidiaries, (ii) Guarantees of the obligations of one or more Permitted Joint Ventures or First Tier Foreign Subsidiaries or (iii) investments in, or loans or advances to, one or more Permitted Joint Ventures or First Tier Foreign Subsidiaries; provided that are appliedupon the making of any such investment, in accordance with Section 2.11(c)loan or advance, to make such Permitted Acquisitionsthe positive difference, if any, between (x) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed in connection withcash that has been invested in, or resulting fromloaned or advanced to, Permitted Acquisitions Joint Ventures and First Tier Foreign Subsidiaries minus (including Indebtedness y) the aggregate of any acquired Persons outstanding all cash payments or repayments of loans or advances that have been received from Permitted Joint Ventures and First Tier Foreign Subsidiaries as of such date, shall not in the aggregate exceed 30% of Consolidated Net Worth (calculated as of the most recently ended fiscal quarter and determined at the time of making such investment, loan or advance by reference to the applicable Permitted AcquisitionBorrower’s financial statements most recently delivered pursuant to Section 5.01(a) shall not exceedor (b) or, on a cumulative basis during if prior to the term date of this Agreementthe delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), $50,000,000;the most recent financial statements referred to in Section 3.04(a)); and
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(jk) any other investments ininvestment, advances loan or loans to or Guarantees of Indebtedness of, any Person in an advance (other than acquisitions) so long as the aggregate amount of all such investments, loans or advances does not exceed 7.5% of Consolidated Net Worth (in each case as of the most recently ended fiscal quarter and determined at the time of making such investment by reference to exceed $25,000,000 at any time outstandingthe Borrower’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)). For the avoidance of doubt, the investments, loans and advances permitted under this clause (k) are separate from, and in addition to, the other investments, loans, advances, guarantees and acquisitions permitted under the foregoing clauses (a)-(j).
Appears in 1 contract
Samples: Credit Agreement (Myr Group Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The None of Parent, Intermediate Holdings, Holdings or the Borrower will, nor will not, and will not Parent permit any of its Restricted Subsidiaries other Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsAcquisitions, provided that (i) the aggregate purchase price of all Permitted Acquisitions consummated under this Section 6.04(b) (which shall be deemed (A) to include (1) any amounts actually paid pursuant to any post-closing payment adjustments, earn-outs or non-compete payments and (2) the principal amount of Indebtedness that is assumed pursuant to Section 6.01(a)(vi) or otherwise incurred in connection with any Permitted Acquisition and (B) to exclude 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)), minus any portion of such purchase price paid with Net Proceeds pursuant to Section 2.11(c), shall not exceed $200,000,000 and (ii) the aggregate purchase price of all Foreign Acquisitions consummated under this Section 6.04(b) (determined as set forth above) shall not exceed $20,000,000 (which amount shall not include (x) any cash expended by any Foreign Subsidiary in respect of a Foreign Acquisition unless such cash represents the proceeds of an investment by a Loan Party to such Foreign Subsidiary in contemplation of such Foreign Acquisition (unless such proceeds so invested are the proceeds of an issuance of Qualified Equity Interests) and (y) the portion of the purchase price of a Foreign Acquisition attributable to assets (other than the Equity Interests of any Person so acquired in such Foreign Acquisition) that are acquired by a Loan Party and constitute Collateral);
(c) investments existing on the date hereof Effective Date and set forth on Schedule 6.04;
(d) investments by Parent, the Borrower and its Restricted the Subsidiaries in Equity Interests in of their respective Subsidiaries; PROVIDED subsidiaries, provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Collateral Agreement or a Foreign Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests of a Foreign Subsidiary referred to in Foreign Subsidiaries set forth in Section 5.12), the definition of the term “Collateral and Guarantee Requirement”) and (ii) the aggregate amount of investments made after the Effective Date pursuant to this clause (d) by Loan Parties in, and loans and advances by in Subsidiaries that are not Loan Parties to, (together with outstanding intercompany loans permitted under clause (ii) of the proviso to paragraph (e) of this Section and outstanding Guarantees by Loan Parties permitted under the proviso to paragraph (f) of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Datethis Section) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale each case determined without regard to any write-downs or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);
(e) loans or advances made by the Borrower to Parent or any Subsidiary and made by Parent or any Restricted Subsidiary to Parent, the Borrower or any other Subsidiary; PROVIDED , 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 Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject not Loan Parties (together with investments permitted under clause (ii) of the proviso to the limitations set forth in clause paragraph (d) aboveof this Section and outstanding Guarantees permitted under the proviso to paragraph (f) of this Section) shall not exceed $25,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(f) Guarantees constituting of Indebtedness that are permitted by Section 6.01; PROVIDED 6.01 and Guarantees of other obligations of Parent, the Borrower or any Subsidiary, provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness and other obligations of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is are Guaranteed by any Loan Party shall be subject (together with investments permitted under clause (ii) of the proviso to the limitations set forth in clause paragraph (d) aboveof this Section and intercompany loans permitted under clause (ii) of the proviso to paragraph (e) of this Section) shall not exceed $25,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(g) (i) loans or advances to employees, officers and directors of Parent, the Borrower or any Subsidiary made in the ordinary course of business not exceeding $5,000,000 in the aggregate outstanding at any time (determined without regard to any write-downs or write-offs of such loans or advances) and (ii)(A) loans or advances to employees, officers and directors of TopCo, Parent, the Borrower or any Subsidiary in connection with such Person’s purchase of Equity Interests of TopCo (prior to the consummation of an IPO) and the Public Company (after the consummation of an IPO) and (B) promissory notes received from stockholders of TopCo, Parent, the Borrower or any Subsidiary in connection with the exercise of stock options in respect of the Equity Interests of TopCo, Parent, the Borrower and the Subsidiaries, in an aggregate amount (in the case of clauses (ii)(A) and (ii)(B) on a combined basis) not to exceed $12,000,000;
(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 Parent, 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;
(hj) Permitted Acquisitions; PROVIDED that investments in the sum form of all consideration Swap Agreements permitted by Section 6.07;
(other than common Equity Interests k) investments of Holdings) paid any Person existing at the time such Person becomes a Subsidiary or otherwise delivered consolidates or merges with the Borrower or any Subsidiary (including in connection with a Permitted Acquisitions Acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger;
(including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds l) investments resulting from Prepayment Events pledges or deposits described in clause (ac) or (d) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such “Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000Encumbrance”;
(im) investments received in connection with the disposition of any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions asset permitted by Section 6.05; and 95 90;
(jn) 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;
(o) investments resulting from pledges and deposits referred to in Section 6.02(b), (i), (n) or (p);
(p) investments in deposit accounts opened in the ordinary course of business with financial institutions;
(q) other investments ininvestments, loans and advances by the Borrower or loans to or Guarantees of Indebtedness of, any Person Subsidiary in an aggregate amount, as valued at cost at the time each such investment, loan or advance is made and including all related commitments for future investments, loans or advances (and the principal amount of any Indebtedness that is assumed or otherwise incurred in connection with such investment, loan or advance), not to exceed exceeding $25,000,000 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); provided that such amount shall be increased by (i) the Net Proceeds of issuances of, or capital contributions in respect of existing, Qualified Equity Interests (other than in connection with the exercise of a Cure Right) that are Not Otherwise Applied; and
(r) investments consisting of the acquisition by any time outstandingsubsidiary of the Borrower (including by way of a contribution) of the Equity Interests of any Subsidiary that is a wholly owned direct or indirect subsidiary of the Borrower, in each case to the extent necessary to consummate the reorganization and rationalization of the Subsidiaries substantially as contemplated by Exhibit G (with such adjustments thereto as are in the best interests of Parent and the Borrower (as determined in good faith by Parent or the Borrower) and is not materially disadvantageous to the Lenders) (the “Permitted Rationalization”).
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent and Borrower will not, and will not permit any of its Restricted the other Subsidiaries (other than a Receivables Subsidiary) to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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, except:
(a) the Acquisitioncash and Permitted Investments;
(b) Permitted Investmentsinvestments existing on the Restatement Effective Date (other than those permitted by clauses (c), (d) and (e) below) and set forth on Schedule 6.04A plus (i) any additional investments in the Persons identified on such Schedule that, as of the Restatement Effective Date, are required by contract or law to be made after the Restatement Effective Date and (ii) other investments that may be required to be made in such Persons after the Restatement Effective Date either by contract or law; provided that the aggregate amount of investments permitted by clauses (i) and (ii) shall not exceed $10,000,000;
(c) investments existing on by the date hereof and set forth on Schedule 6.04;
(d) investments by Parent, the Borrower and its Restricted the other Subsidiaries in Equity Interests in their respective Subsidiaries, and by any Foreign Subsidiary in Equity Interests in any other Foreign Subsidiary; PROVIDED provided that (i) any the Subsidiary in which such Equity Interests in investment is made is a Subsidiary held by a Loan Party shall be pledged pursuant to before such investment is made, or such investment is made in connection with the Pledge Agreement (subject to the limitations applicable to the pledge formation of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), such Subsidiary and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees (other than Excluded Guarantees) by Loan Parties of Indebtedness and other obligations of, Unrestricted Subsidiaries that are not Loan Parties (including excluding, without duplication, all such investments, loans, loans or advances and Guarantees existing on the Restatement Effective Date) shall not exceed $25,000,000 200,000,000 at any time outstanding (it being understood thatdisregarding any write-down or write-off of any such loan, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale advance or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionother investment);
(ed) loans or advances made by the Borrower Parent to any Subsidiary and made by any Restricted Subsidiary to the Borrower Parent or any other Subsidiary; PROVIDED provided that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (dc) above;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01the Parent of obligations of any Subsidiary and Guarantees by any Subsidiary of obligations of the Parent or any other Subsidiary; PROVIDED provided that (i) a Restricted Subsidiary that is not a Loan Party shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee any obligations 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, Loan Party and (ii) the aggregate principal amount of Indebtedness and other obligations of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause (dc) above;
(f) loans and advances to employees in the ordinary course of business of the Parent and the Subsidiaries as presently conducted in an aggregate amount not to exceed $10,000,000 at any time outstanding (disregarding any write-down or write-off thereof):
(g) Permitted Acquisitions;
(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;
(hi) Permitted Acquisitions; PROVIDED that the sum of all consideration investments described on Schedule 6.04B;
(other than common Equity Interests of Holdingsj) paid or otherwise delivered in connection with Permitted Acquisitions investments, Guarantees, loans and advances made amongst and between Foreign Subsidiaries;
(including the principal amount of any Indebtedness issued as deferred purchase price k) promissory notes and the fair market value of any other non-cash consideration but excluding received in connection with dispositions of assets;
(l) investments in the amount ordinary course of Net Proceeds from Prepayment Events described in clause business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices; and
(am) of other investments, loans, advances, acquisitions and Guarantees; provided that (i) at the definition of the term Prepayment Event that are appliedtime any such investment, in accordance with Section 2.11(c)loan, to make such Permitted Acquisitionsadvance, acquisition or Guarantee, is made and immediately after giving effect thereto, no Default shall have occurred or be continuing and (ii) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed in connection withsuch investments, or resulting fromloans, Permitted Acquisitions (including Indebtedness of any acquired Persons advances, acquisitions and Guarantees outstanding at the any time of the applicable Permitted Acquisition(disregarding any write-down or write-off thereof) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding40,000,000.
Appears in 1 contract
Samples: Credit Agreement (American Axle & Manufacturing Holdings Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly Owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the Acquisition;
(b) Permitted Investments;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower and its the Restricted Subsidiaries in Equity Interests in their respective SubsidiariesSubsidiary Loan Parties; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)Collateral Agreement;
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED provided that (i) any such loans and advances made by a Loan Party shall be pledged pursuant to the Collateral Agreement and (ii) the amount of such loans and advances made after the date hereof by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiariesnot Loan Parties, including to LOL Finance and its subsidiaries, shall be subject to the limitations limitation set forth in clause (dm) abovebelow;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties (including LOL Finance and its subsidiaries) that is Guaranteed after the date hereof by any Loan Party Parties shall be subject to the limitations limitation set forth in clause (dm) abovebelow;
(g) investments in Equity Interests of CoBank required to be made in accordance with CoBank's bylaws and capital plans applicable to cooperative borrowers generally;
(h) investments consisting of non-cash consideration received in connection with sales of assets permitted by Section 6.05;
(i) investments consisting of Sellers' Retained Interests in Securitizations permitted by Section 6.05;
(j) 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;
(hk) Permitted Acquisitions; PROVIDED acquisitions of Persons that, upon consummation of such acquisitions, become Subsidiary Loan Parties or are merged into the Borrower in a transaction permitted by Section 6.03, provided that the sum consideration for such acquisitions consists solely of all consideration (other than common Equity Interests and obligations of Holdingsthe Borrower to pay patronage and revolvements;
(l) paid investments by LOL Finance and its Wholly Owned Subsidiaries consisting of loans made or otherwise delivered acquired by them in connection with Permitted Acquisitions the ordinary course of business not in excess of $100,000,000 in the aggregate at any time outstanding (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make any such Permitted Acquisitions) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed in connection with, or resulting from, Permitted Acquisitions loans sold (including Indebtedness by way of any acquired Persons outstanding at the time of the applicable Permitted Acquisitionparticipation sales) shall not exceed, on in a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received non-recourse sale transaction as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding.Section
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Neither the Borrower nor any Subsidiary will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to before such merger) any Equity Interests Interest in or evidences 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, except:
(a) the Acquisition;
(b) Permitted Investments;
(cb) investments existing on the date hereof and set forth listed on Schedule 6.04;
(dc) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary Interest held by a Loan Credit Party shall be pledged pursuant to the Pledge Security Agreement as required to satisfy clause (subject to b) of the limitations applicable to the pledge definition of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), "Collateral and Guarantee Requirement" and (ii) the aggregate amount of investments by Loan Credit Parties in, and loans and advances by Loan Credit Parties to, and Guarantees by Loan Credit Parties of Indebtedness Debt of, Unrestricted Subsidiaries that are not Credit Parties (including all such investments, loans, advances and Guarantees existing on the Effective DateDate (other than those existing on the closing date and identified on Schedule 6.04), but excluding investments arising in connection with, and as part of, a Permitted Receivables Transaction) shall not exceed (x) $25,000,000 3,000,000 at any time outstanding (it being understood thatin the case of advances made to TRW Xxxxxx Bolzenschweiss-Technik Verwaltungs GmhH and other German Subsidiaries of the Borrower, in each case to be used for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) working capital and (iiiy) the an aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets $5,000,000 at any time outstanding (it being understood that, for purposes in the case of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)all other investments;
(ed) loans or advances made by the Borrower to any Subsidiary and or made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED provided that the amount of such loans and advances made by Loan Credit Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Credit Parties shall be subject to the limitations set forth in clause (d6.04(c) above;
(fe) Guarantees constituting Indebtedness Debt permitted by Section 6.01; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Secured Obligations pursuant to the Guarantee Agreement, Security Agreement and (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Secured 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the BorrowerDebt, and (ii) the aggregate principal amount of Indebtedness Debt of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Credit Parties that is Guaranteed by any Loan Party Credit Parties shall be subject to the limitations limitation set forth in clause (d6.04(c) above;
(gf) 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;
(hg) Permitted Acquisitionsany Business Acquisition; PROVIDED provided that the aggregate consideration for all Business Acquisitions made by the Borrower and its Subsidiaries after the date hereof (as such aggregate consideration is reduced to an amount not less than zero by an amount equal to the Net Cash Proceeds from the issuance of Additional Subordinated Debt) shall not exceed the sum of all consideration (other than common Equity Interests i) $25,000,000 plus (ii) in the case of Holdingsany Business Acquisition made on or after the date on which the Borrower has delivered the Required 2003 Financials, 50% of Consolidated Net Income for each Fiscal Year ended prior to the date of such Business Acquisition (commencing with the Fiscal Year ended September 30, 2003); provided further that no Business Acquisition shall be permitted pursuant to this Section 6.04(g) paid or otherwise delivered in connection with Permitted Acquisitions unless, immediately before and after giving effect to such Business Acquisition, (including A) no Default shall have occurred and be continuing and (B) the principal aggregate unused amount of any Indebtedness issued the Revolving Commitments shall be equal to or greater than $17,500,000. Solely for purposes of calculating the amount specified in Subsection 6.04(g)(ii) above, if Consolidated Net Income (as deferred purchase price adjusted to exclude one time restructuring and the fair market value of any other plant closing charges that are non-cash consideration but excluding charges, and, to the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are appliedextent applicable, in accordance with Section 2.11(cclause (2) below) for any Fiscal Year is less than zero (such negative number for any Fiscal Year, the "Negative Carry-Forward Amount"), (1) Consolidated Net Income for such Fiscal Year shall be deemed to make be zero and (2) the Negative Carry-Forward Amount in respect of such Permitted AcquisitionsFiscal Year shall be applied to reduce Consolidated Net Income for the succeeding Fiscal Year. For purposes of this Section 6.04(g), a Lender's Revolving Commitment will be deemed to be used to the extent of its outstanding Revolving Loans and LC Exposure;
(h) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed in connection with, or resulting fromWith respect to each Mortgaged Property, Permitted Acquisitions Encumbrances (including Indebtedness of any acquired Persons outstanding at as defined in the time of the applicable Permitted Acquisition) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000;related Mortgages); and
(i) any investments loans or advances to employees made in the ordinary course of business consistent with past practices of the Borrower or its Subsidiaries; provided that the outstanding principal amount of such loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount shall not to exceed $25,000,000 1,000,000 at any time outstandingtime.
Appears in 1 contract
Samples: Credit Agreement (Integrated Energy Technologies Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. (a) The Borrower will not, and will not permit any of its Restricted the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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, except, subject to clause (b) hereof:
(a) the Acquisition;
(bi) Permitted Investments;
(cii) Permitted Acquisitions;
(iii) investments existing on the date hereof and set forth on Schedule 6.04, to the extent such investments would not be permitted under any other clause of this Section;
(div) investments by the Borrower and its Restricted Subsidiaries in the Equity Interests in their respective of the Subsidiaries; PROVIDED , provided that (iA) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge voting common stock of Equity Interests in a Foreign Subsidiaries set forth Subsidiary referred to in Section 5.12), ) and (iiB) the aggregate amount of investments by the Borrower in Subsidiaries that are not Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 1,500,000 in the aggregate at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(ev) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED , provided that the amount of (A) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement and (B) the aggregate amount outstanding at any time of all such loans and advances by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to not exceed the limitations set forth greater of (I) $2,500,000 or (II) the aggregate amount paid (including any Indebtedness assumed in clause connection therewith) in connection with all Permitted Acquisitions involving assets located outside the United States of America or the Equity Interests of entities organized outside the United States of America from and after the date hereof (d) abovebut not in excess of $10,000,000 during the term of this Agreement);
(fvi) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless aggregate amount outstanding at any time of Indebtedness that is (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant outstanding with respect to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any not Loan Party shall be subject to the limitations set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts Parties and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding.91
Appears in 1 contract
Samples: Credit Agreement (Donjoy LLC)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Loan Parties will not, and will not permit any of its their Restricted Subsidiaries to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly Owned Subsidiary prior to such merger) any 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 toto or other extensions of credit, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or make any other payment for property or services for the account or use of any other Person (other than expenses incurred in the ordinary course of business or as required pursuant to agreements entered into in connection with Permitted PharmaBio Investments) or make any upfront milestone, marketing or other funding payment to another Person in connection with obtaining a right to receive royalty or other payments in the future, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting con- stituting a business unitunit (each of the foregoing, an "Investment" and collectively, "Investments"), except:
(a) the Acquisition;
(bi) Permitted Investments;
(cii) investments Investments existing on the date hereof Effective Date (or in respect of which a binding commitment to make such Investment exists on the Effective Date) (including, without limitation, Permitted PharmaBio Investments as of the Effective Date) and set forth on Schedule 6.04;
(diii) investments Investments by the Parent in the Intermediate Parent and by the Intermediate Parent in the Borrower and by or among the Borrower and the Restricted Subsidiaries in Subsidiary Loan Parties (other than Investments in Bioglan); provided that any such Investment held by a Loan Party shall be pledged pursuant to a Pledge Agreement;
(a) Investments made after the Effective Date by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED of Non-U.S. Subsidiaries and (b) Investments that (i) any would otherwise constitute a Permitted PharmaBio Investment or a Permitted Acquisition but for the fact that such Equity Interests in a Subsidiary held Investment is made by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12)Wholly Owned Non-U.S. Subsidiary; provided, (ii) that the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries Investments made pursuant to this clause (including all such investments, loans, advances and Guarantees existing on the Effective Dateiv) shall not exceed $25,000,000 50.0 million at any time outstanding time; provided, further, that such limitation shall not be applied to Investments specified in clause (it being understood thata) consisting solely of the capitalization of loans to Non-U.S. Subsidiaries otherwise permitted under this Agreement;
(v) Investments constituting Indebtedness permitted by Sections 6.01(a)(iv), for purposes of determining outstanding investments in Unrestricted Subsidiaries(viii), the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition(ix) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionxi);
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(fvi) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above6.01(a)(v);
(gvii) investments Investments by a Wholly Owned Non-U.S. Subsidiary in another Wholly Owned Non-U.S. Subsidiary;
(viii) 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;
(hix) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price loans and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) advances to employees of the definition Parent, the Borrower or their Restricted Subsidiaries (A) in the ordinary course of the term Prepayment Event that are appliedbusiness (including, in accordance with Section 2.11(c)without limitation, to make such Permitted Acquisitionsfor travel, entertainment and relocation expenses) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 8.0 million in the aggregate at any time outstanding or (B) for the purpose of purchasing Equity Interests in the Parent Guarantors not to exceed $5.0 million in the aggregate at any time outstanding;
(x) Permitted PharmaBio Investments since the Effective Date not to exceed in the aggregate the sum of (x) $150.0 million plus (y) Cumulative Excess Cash Flow plus (z) any net cash amounts (for avoidance of doubt, excluding any Investment received in a Permitted PharmaBio Swap) received in respect of the sale or disposition or satisfaction of obligations of or with respect to any Permitted PharmaBio Investments (other than the sale or disposition of marketable securities (as set forth on the Borrower's balance sheet in accordance with GAAP) held by the Borrower or any of its Subsidiaries on the Effective Date) to the extent such amount does not exceed the original amount of such Investment (exclusive of any write-up or write-down);
(xi) Permitted PharmaBio Investments received in connection with a Permitted PharmaBio Swap;
(xii) Permitted Acquisitions for aggregate Acquisition Consideration since the Effective Date not to exceed $200.0 million; and
(xiii) other loans, advances and investments of the Borrower or any Subsidiary Loan Party not in excess of $15.0 million outstanding at any time.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Neither the Company nor any Borrower will, nor will not, and will not they permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:except (without duplication):
(a) the AcquisitionAcquisition and Permitted Acquisitions;
(b) Permitted Investments;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower Company and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Collateral Agreement (subject to the limitations applicable to common stock of a Foreign Subsidiary referred to in the pledge definition of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), the term “Collateral and Guarantee Requirement”) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries that are not Loan Parties (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 1,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(e) loans or advances made by the Borrower Company to any Subsidiary and made by any Restricted Subsidiary to the Borrower Company or any other Subsidiary; PROVIDED 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 Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt guarantee any obligation unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures guaranteed the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED that loans or advances to employees or contractors made in the sum ordinary course of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) business of the definition of the term Prepayment Event that are applied, Company or a Subsidiary not exceeding $2,000,000 in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000any one time;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions the form of Hedging Agreements permitted by under Section 6.056.07; and 95 90and
(j) any investments consisting of non-cash consideration received in the form of (i) securities, notes or similar obligations in connection with a disposition permitted by Section 6.05 or (ii) notes in connection with sale of Equity Interests of the Company to its management, employees or directors; and
(k) other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount amount, as valued at the time each such investment is made, not to exceed exceeding $25,000,000 at any time outstanding1,000,000 in the aggregate for all such investments made from and after the Effective Date.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The No Borrower will, nor will not, and will not it permit any of its Restricted Subsidiaries other Loan Party to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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) make any assets of any other Person constituting a business unitAcquisition, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investmentsexisting investments and advances described on Schedule 6.04 hereto, but no increase in the amount thereof;
(c) investments existing on the date hereof and set forth on Schedule 6.04loans or advances solely among Loan Parties;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall if no Default exists or would be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12)caused thereby, (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee no Default exists at the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed time of, or would be caused by, the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests incurrence of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) aboveGuarantees;
(ge) 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;
(hf) the Loan Parties may create one or more Subsidiaries to conduct the business of the Borrowers in accordance with Section 5.03 so long as such Subsidiaries promptly after their creation become Guarantors;
(g) Permitted Acquisitions; PROVIDED that the sum of all consideration and
(other than common Equity Interests of Holdingsh) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price addition to investments, loans and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause advances permitted by paragraphs (a) of through (g) above, other investments, loans and advances by the definition of Borrowers and the term Prepayment Event Guarantors provided that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in the aggregate amount invested, loaned or loans advanced pursuant to this paragraph (h) (determined without regard to any other Person received as noncash consideration for saleswrite-downs or write-offs of such investments, transfers, leases loans and other dispositions permitted by Section 6.05; and 95 90
(jadvances) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount does not to exceed $25,000,000 at any time outstanding500,0001,000,000 in the aggregate, (ii) no Default exists or would be caused thereby, and (iii) the aggregate unused amount of the ABL Revolving Commitments on a pro forma basis after giving effect to such additional investment, loan or advance equals or exceeds $10,000,000.
Appears in 1 contract
Samples: Floor Plan First Lien Credit Agreement (Alta Equipment Group Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted 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 Restricted Subsidiary prior to such merger) any Equity Interests in or 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 unitunit (whether through purchase of assets, merger or otherwise), except:
(a) the AcquisitionPermitted Investments and Permitted Acquisitions;
(b) Permitted Investmentsinvestments in existence on the date of this Agreement and described in Schedule 6.04;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower and its Restricted the Subsidiaries (other than Permitted Joint Ventures) in Equity Interests in their respective Subsidiaries; PROVIDED Subsidiaries (other than Permitted Joint Ventures), provided that (iA) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Security Agreement (subject to the limitations applicable to the pledge common stock of Equity Interests in a Foreign Subsidiaries set forth Subsidiary referred to in Section 5.12), 5.11) and (iiB) the aggregate amount of investments by Loan Parties in, and loans and advances by in Subsidiaries (other than Permitted Joint Ventures) that are not Loan Parties to, (together with outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(d) and outstanding Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on permitted under the Effective Dateproviso to Section 6.04(e)) shall not exceed $25,000,000 1,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(ed) loans or advances made by the Borrower to any Subsidiary and (other than Permitted Joint Ventures), Guarantees by the Borrower of the obligations (other than Indebtedness) of any Subsidiary (other than Permitted Joint Ventures), loans or advances made by any Restricted Subsidiary (other than Permitted Joint Ventures) to the Borrower or to any other Subsidiary; PROVIDED Subsidiary (other than Permitted Joint Ventures), or Guarantees by any Subsidiary (other than Permitted Joint Ventures) of the obligations (other than Indebtedness) of the Borrower or of any Subsidiary (other than Permitted Joint Ventures), provided that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiariesto, or to Restricted Guarantees made by Loan Parties of the obligations of, Subsidiaries that are Foreign Subsidiaries, shall be subject not Loan Parties (together with outstanding investments permitted under clause (B) to the limitations set forth in clause (dproviso to Section 6.04(c) aboveand outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $1,000,000 at any time outstanding;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries (other than Permitted Joint Ventures) that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with outstanding investments permitted under clause (B) to the limitations set forth in proviso to Section 6.04(c) and outstanding intercompany loans permitted under clause (dB) aboveto the proviso to Section 6.04(d)) shall not exceed $1,000,000 at any time outstanding;
(f) loans or advances made by the Borrower or any Subsidiary to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $500,000 in the aggregate at any one time outstanding;
(g) 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;
(h) investments received in connection with the bankruptcy or reorganization of, or settlement dispositions of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of businessassets permitted by Section 6.05;
(hi) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events investments constituting deposits described in clause clauses (ac) and (d) of the definition of the term Prepayment Event “Permitted Encumbrances”;
(j) (i) acquisitions, formation or ownership of Equity Interests in one or more Permitted Joint Ventures, (ii) Guarantees of the obligations of one or more Permitted Joint Ventures, or (iii) investments in, or loans or advances to, one or more Permitted Joint Ventures; provided that are appliedupon the making of any such investment, in accordance with Section 2.11(c)loan or advance, to make such Permitted Acquisitionsthe positive difference, if any, between (x) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed in connection withcash that has been invested in, or resulting fromloaned or advanced to, Permitted Acquisitions Joint Ventures minus (including Indebtedness y) the aggregate of any acquired Persons outstanding all cash payments or repayments of loans or advances that have been received from Permitted Joint Ventures as of such date, shall not in the aggregate exceed 20% of Consolidated Net Worth (calculated as of the most recently ended fiscal quarter and determined at the time of making such investment, loan or advance by reference to the applicable Permitted AcquisitionBorrower’s financial statements most recently delivered pursuant to Section 5.01(a) shall not exceedor (b) or, on a cumulative basis during if prior to the term date of this Agreementthe delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), $50,000,000;the most recent financial statements referred to in Section 3.04(a)); and
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(jk) any other investments ininvestment, advances loan or loans to or Guarantees of Indebtedness of, any Person in an advance (other than acquisitions) so long as the aggregate amount of all such investments, loans or advances does not exceed 7.5% of Consolidated Net Worth (in each case as of the most recently ended fiscal quarter and determined at the time of making such investment by reference to exceed $25,000,000 at any time outstandingthe Borrower’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)).
Appears in 1 contract
Samples: Credit Agreement (Myr Group Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The None of the Parent Borrower or any Foreign Subsidiary Borrower will, nor will not, and will not they permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the Acquisition;
(b) Permitted Investments;
(cb) investments existing on the date hereof and set forth on Schedule 6.04;
(c) Permitted Acquisitions;
(d) investments by the Parent Borrower and its Restricted the Subsidiaries in Equity Interests in their respective SubsidiariesSubsidiaries that exist immediately prior to any applicable transaction; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject or any applicable Foreign Security Documents, as the case may be, to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), extent required by this Agreement and (ii) the aggregate amount of investments (excluding any such investments, loans, advances and Guarantees to such Subsidiaries that are assumed and exist on the date any Permitted Acquisition is consummated and that are not made, incurred or created in contemplation of or in connection with such Permitted Acquisition) by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on that are not Domestic Loan Parties made after the Effective Date) Date shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)$50,000,000;
(e) loans or advances made by the Parent Borrower to any Subsidiary and made by any Restricted Subsidiary to the Parent Borrower or any other Subsidiary; PROVIDED provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement and (ii) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that 6.01(a)(viii);
(ig) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary investments arising as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) abovePermitted Receivables Financing;
(gh) investments constituting permitted Capital Expenditures under Section 6.14;
(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;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(ij) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90;
(jk) Guarantees by Holdings, the Parent Borrower and the Subsidiaries of leases entered into by any Subsidiary as lessee; provided that the amount of such Guarantees made by Loan Parties to Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (d) above;
(l) extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;
(m) loans or advances to employees made in the ordinary course of business consistent with prudent business practice and not exceeding $5,000,000 in the aggregate outstanding at any one time;
(n) investments in the form of Hedging Agreements permitted under Section 6.07;
(o) investments by the Parent Borrower or any Subsidiary in (i) the capital stock of a Receivables Subsidiary and (ii) other investments ininterests in a Receivables Subsidiary, in each case to the extent required by the terms of the Permitted Receivables Financing;
(p) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(q) Permitted Joint Venture and Foreign Subsidiary Investments;
(r) investments, loans or loans advances in addition to or Guarantees of Indebtedness of, any Person those permitted by clauses (a) through (q) above not exceeding in an the aggregate amount not to exceed $25,000,000 50,000,000 at any time outstanding; and
(s) investments made with the Net Proceeds of any issuance of Equity Interests in Holdings.
Appears in 1 contract
Samples: Credit Agreement (Trimas Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any of its Restricted the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, or make or permit to exist any loans or advances to, 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, except:
(a) the AcquisitionBorrower (and, in the case of clauses (i), (ii) and (iii) below, Holdings) will be permitted to (i) fund distributions by the ESOP in accordance with the terms of the ESOP Plan and Trust Document, (ii) repurchase Common Stock pursuant to the Put Options, (iii) repurchase Common Stock (and options to acquire Common Stock) from directors and employees of Holdings, the Borrower and the Subsidiaries and (iv) make Permitted Acquisitions; provided that (A) both of the Restricted Transaction Conditions shall have been satisfied immediately prior and after giving effect thereto (provided further, however, that as to fund distributions pursuant to clause (i), above, the Borrower shall be deemed to have complied with the requirements of the second of the Restricted Transaction Conditions (that is, the requirements set forth in clause (ii) of the definition of Restricted Transaction Conditions) if the Borrower delivers, as applicable, the Borrowing Base Certificate or written statement to the Administrative Agent, to the extent required thereby, within 15 days after the date on which such fund distribution occurs), (B) the aggregate cumulative amount of all payments, prepayments, purchase payments, investments, Restricted Payments and other consideration made on or after the Third Restatement Effective Date in respect of transactions governed or restricted by this Sections 6.04(a) shall not exceed the Cumulative Maximum (and for purposes of determining compliance with the limitations of this clause (B), the aggregate principal amount of Indebtedness assumed, incurred or otherwise resulting from Permitted Acquisitions shall be deemed to constitute amounts expended for such purpose) and (C) consideration in respect of Permitted Acquisitions shall consist solely of cash consideration and, subject to compliance with Section 6.01, assumption or incurrence of Indebtedness;
(b) Permitted Investments;
(c) investments existing on the date hereof Third Restatement Effective Date and set forth on Schedule 6.04, to the extent such investments would not be permitted under any other clause of this Section;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective the capital stock of the Subsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shares of capital stock shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge common stock of Equity Interests in a Foreign Subsidiaries set forth Subsidiary referred to in Section 5.12), ) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) that are not Loan Parties shall not exceed $25,000,000 100,000 in the aggregate at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED provided that the amount of (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement and (ii) the amount of all such loans and advances by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (dd)(ii) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is not Loan Parties Guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause (dd)(ii) above;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED that loans to directors and employees of the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered Borrower and the Subsidiaries in connection with Permitted Acquisitions (including the their capacity as such, in an aggregate principal amount of not to exceed $3,500,000 at any Indebtedness issued as deferred purchase price and time outstanding;
(i) Hedging Agreements permitted under Section 6.07;
(j) until July 1, 2004, the fair market value of ESOP Loan in a principal amount not exceeding $3,500,000 at any other non-cash consideration but excluding time outstanding;
(k) contributions to the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, ESOP in accordance with the terms of the ESOP Plan and Trust Document;
(l) loans by the Borrower to Holdings to the extent Holdings is permitted to incur such Indebtedness pursuant to Section 2.11(c6.01(b); and
(m) guarantees by Holdings of Indebtedness incurred by another Person with respect to the development of certain tracking technology transferred to Holdings by the Borrower on or before the Third Restatement Effective Date, to make such Permitted Acquisitions) plus so long as the aggregate principal amount of all such Indebtedness otherwise incurred or assumed in connection withdoes not at any time exceed an amount equal to $4,000,000, or resulting from, Permitted Acquisitions (including Indebtedness minus the amount of any acquired Persons outstanding at the time of the applicable Permitted Acquisition) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions all expenditures made by Holdings permitted by Section 6.05; and 95 90
(j) any other investments in6.08(a)(iv)(D), advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstandingbelow.
Appears in 1 contract
Samples: Credit Agreement (Argo Tech Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and Holdings and the Borrower will not permit any of its Restricted the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) to the Acquisitionextent provided for by the terms of the Recapitalization;
(b) Permitted Investments;
(c) investments existing on the date Effective Date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower and its Restricted the Subsidiaries that are Loan Parties in Equity Interests in their respective Subsidiaries that are Loan Parties and investments by Subsidiaries that are not Loan Parties in Equity Interests in their respective Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge voting stock of a Foreign Subsidiary and Equity Interests in the Foreign Subsidiaries set forth Joint Venture Companies referred to in Section 5.12), (ii) the aggregate amount definition of investments by Loan Parties in, the term “Collateral and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionGuarantee Requirement”);
(e) loans or advances made by the Borrower to Holdings or any Subsidiary and made by Holdings or any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED , provided that (subject to the amount proviso to clause (c) of the definition of “Collateral and Guarantee Requirement”) any such loans and advances made by a Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, Party shall be subject evidenced by a promissory note pledged pursuant to the limitations set forth in clause (d) abovePledge Agreement;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED 6.01 (other than with respect to the Junior Subordinated Note or any Permitted Junior Subordinated Note Refinancing Indebtedness) of Indebtedness of the Borrower or any Subsidiary Loan Party, provided that (iA) a Restricted Subsidiary shall not Guarantee the Subordinated Debt, the First Lien Notes, the Second Lien Notes, any Permitted Convertible Debt or any Permitted Refinancing Indebtedness unless (Ai) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (Bii) in the case of any Guarantee of Indebtedness that is subordinated to the Obligations, such Guarantee of the Subordinated Debt is shall be subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Guaranteed Indebtedness and (iii) in the case of Guarantees of the Permitted Convertible Debt and (C) the Permitted Refinancing Indebtedness, such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon in the sale or transfer case of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure Permitted Convertible Debt, on terms no less favorable to the Lenders than the terms applicable to the Guarantees of the Lien Convertible Subordinated Debt, and, in the case of the Permitted Refinancing Indebtedness, on such Equity Interests that secures terms no less favorable to the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary Lenders than the terms applicable to the Guarantees of the Indebtedness being refinanced and (2B) Holdings or the Net Proceeds resulting from Borrower may Guarantee Permitted Junior Subordinated Note Refinancing Indebtedness if such sale or transfer are applied in accordance with Guarantee is subordinated to the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Guaranteed Permitted Junior Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) aboveNote Refinancing Indebtedness;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) after the Transition Date, Permitted Acquisitions; PROVIDED , provided that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitionsconsideration) 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, on a cumulative basis during subsequent to the term of this AgreementEffective Date, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90;
(j) Guarantees by the Borrower and the Subsidiaries of leases entered into by any Subsidiary as lessee;
(k) extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;
(l) investments in payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(m) loans or advances to employees made in the ordinary course of business consistent with prudent business practice and not exceeding $5,000,000 in the aggregate outstanding at any one time;
(n) 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;
(o) investments in the form of Hedging Agreements permitted under Section 6.07;
(p) investments by the Borrower or any Subsidiary in (i) the capital stock of a Receivables Subsidiary and (ii) other interests in a Receivables Subsidiary, in each case to the extent determined by the Borrower in its judgment to be reasonably necessary in connection with or required by the terms of the Permitted Receivables Financing;
(q) investments, loans, advances, guarantees and acquisitions resulting from a foreclosure by Holdings, the Borrower or any Subsidiary with respect to any secured investment or other transfer of title with respect to any secured investment in default;
(r) investments, loans, advances, guarantees and acquisitions the consideration for which consists solely of shares of common stock of Holdings;
(s) the Acquisition;
(t) other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 40,000,000 (or, after the Transition Date, $100,000,000) at any time outstanding; and
(u) the creation by the Borrower of a limited liability company organized under the laws of a jurisdiction in the United States of America and the Borrower’s contribution to the OnMOS Joint Venture through such limited liability company of (i) $51 in exchange for a 51% interest therein and (ii) the assets and operations of the TMOS business of the Subsidiaries and Holdings; provided that promptly following the contribution of such assets and operations to the OnMOS Joint Venture contemplated by this clause (u), the Borrower shall deliver to the Administrative Agent copies of all definitive documentation regarding such investment, certified by a Financial Officer of the Borrower as complete and correct.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and will not permit any of its Restricted the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Wholly Owned Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsInvestments permitted pursuant to Section 2.11(c);
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower and its Restricted the Subsidiaries in Equity Interests in their respective Subsidiaries; , PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge common stock of Equity Interests in a Foreign Subsidiaries set forth Subsidiary referred to in Section 5.12), ) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries that are not Loan Parties (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 (based on cost and net of any cash distributed by such Subsidiaries that are not Loan Parties to Loan Parties that represent a return of paid-in capital or repayment of principal) at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted 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 Pledge Agreement and (ii) the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties shall be subject to the limitations limitation set forth in clause (dc) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; , PROVIDED that (i) a Restricted neither Parent nor any Subsidiary shall not Guarantee the Subordinated Debt New Senior Notes unless (A) Parent or such Restricted Subsidiary Subsidiary, as applicable, also has Guaranteed the Obligations pursuant to the a Guarantee Agreement, Agreement and (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 New Senior Notes provides for the release and termination thereof, without action by any party, upon the sale or transfer any release and termination of such Guarantee of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, Obligations and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitations limitation set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) investments constituting Permitted Acquisitions; PROVIDED Acquisitions not to exceed $200,000,000 (based on cost and net of any cash distributed by such Subsidiaries that are not Loan Parties to Loan Parties that represent a return of paid-in capital or repayment of principal) in the sum aggregate (which amount will be deemed (i) to include the amount of all consideration (other than common Equity Interests of Holdings) paid any Indebtedness acquired or otherwise delivered assumed in connection with Permitted Acquisitions and (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding ii) not to include (A) the amount of (1) Net Proceeds from Prepayment Events described in clause (a) of the definition issuance of Equity Interests of Parent (other than Disqualified Stock) and (2) common equity contributions made by Sponsor to Parent, in the term Prepayment Event case of clauses (1) and (2) that are appliedcontributed by Parent to the Borrower as common equity and expended to effect a Permitted Acquisition and (B) Permitted Acquisitions paid for (in whole or in part and, if in accordance with Section 2.11(c)part, to make such Permitted Acquisitionsthe extent so paid for) plus with the aggregate principal amount issuance of all Indebtedness otherwise incurred or assumed in connection with, or resulting from, Permitted Acquisitions Equity Interests of Parent (including Indebtedness of any acquired Persons outstanding at the time of the applicable Permitted Acquisition) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000other than Disqualified Stock));
(i) any investments Loans and advances to employees, directors or consultants in or loans the ordinary course of business of the Borrower and the Subsidiaries as presently conducted in an aggregate principal amount not to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90exceed $5,000,000;
(j) Investments by the Borrower in Hedging Agreements permitted under Section 6.07;
(k) receivables owing to the Borrower or any Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; PROVIDED, HOWEVER, that such trade terms may include such concessionary trade terms as the Borrower or any such Subsidiary deems reasonable under the circumstances;
(l) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business; and
(m) Investments that are made exclusively with Equity Interests of Parent (other than Disqualified Stock);
(n) other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at 15,000,000;
(o) any time outstandinginvestment described in the definition of the term "ACS Media Transaction"; and
(p) any Restricted Payments permitted pursuant to clause (vii) or (viii) of Section 6.08(a) or any transaction permitted pursuant to clause (viii) or (ix) of Section 6.08(b).
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 or acquire (including pursuant to any merger with or consolidation with, or as a Division Successor pursuant to the Division of, any Person that was not a wholly owned Restricted Subsidiary prior to such mergermerger or consolidation or Division) any Equity Interests in or 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 unitunit (each of the foregoing, an “Investment”), except:
: (a) the Acquisition;
Permitted Investments; (b) Permitted Investments;
Acquisitions; (c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments Investments by the Borrower and its Restricted Subsidiaries existing on the date hereof in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge capital stock of Equity Interests in Foreign its Restricted Subsidiaries set forth in Section 5.12), (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees Investments existing on the Effective DateDate and set forth on Schedule 6.04; (d) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(e) loans or advances Investments made by the Borrower in or to any Restricted Subsidiary and made by any Restricted Subsidiary in or to the Borrower or any other Subsidiary; PROVIDED Restricted Subsidiary (provided that the amount of such loans and advances made Investments by Loan Parties to Unrestricted Subsidiaries, in or to Restricted Subsidiaries that which are Foreign Subsidiaries, not Loan Parties shall be subject not exceed an amount equal to the limitations set forth lesser of (x) fifteen percent (15.0%) of the Borrower’s Consolidated EBITDA and (y) fifteen percent (15.0%) of the Borrower’s Consolidated Total Assets, in clause each case, as of the end of any such fiscal quarter for which financial statements have been delivered pursuant to Section 5.01); (d) above;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED (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 Restricted Subsidiary; (g) Investments by the Borrower or any Restricted Subsidiary pursuant to any Swap Agreements to the extent permitted under Section 6.05; (h) Investments by the Borrower or any Restricted Subsidiary in equity interests of Persons (other than Restricted Subsidiaries) engaged in lines of business of the type conducted by the Borrower and its Restricted Subsidiaries as of the 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 Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations Delaware limited liability company, pursuant to the Guarantee Agreement, (B) such Guarantee that certain Amended and Restated Limited Liability Company Agreement 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding.PennEast 81 #92274486v19
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Borrowers will not, and each of Holdings and the Borrowers will not permit any of its Restricted subsidiaries that are Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the Acquisition;
(b) Permitted Investments;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by Holdings, the Borrower Borrowers and its Restricted the Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in held by Holdings, either Borrower or a Subsidiary held by a Loan Party shall shall, to the extent required by the Collateral and Guarantee Requirement, be pledged pursuant to the applicable Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in or Foreign Subsidiaries set forth in Section 5.12), Security Agreement and (ii) the aggregate amount of investments made after the Effective Date by Core Loan Parties in, and loans and advances outstanding at any time by Core Loan Parties to, and Guarantees outstanding at any time by Core Loan Parties of Indebtedness of, Unrestricted Subsidiaries that are not Core Loan Parties (including all such investments, loans, advances and Guarantees existing on the Effective Datedate hereof and all investments made in, outstanding loans and advances to, and outstanding Guarantees of Indebtedness of, any Permitted Spinoff Subsidiary that were made at a time when such Permitted Spinoff Subsidiary was a Core Loan Party) shall not exceed $25,000,000 150,000,000 at any time outstanding outstanding, provided that (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, x) the sale or disposition by a Loan Party of an total investment in an Unrestricted a Permitted Spinoff Subsidiary shall will be deemed to reduce investments be reduced by the fair market value of any Publicly Traded Equity Securities held by any Core Party and received from the Permitted Spinoff in Unrestricted Subsidiaries by an amount equal to the Net Proceeds respect of such sale or dispositionPermitted Spinoff Subsidiary (determined in good faith by a Financial Officer of Holdings at the time of such Permitted Spinoff) and (iiiy) the aggregate amount total investment in SAN Holdings, Tape Holdings or HDD Holdings, as applicable, shall not include loans, capital contributions and other payments to SAN Holdings, Tape Holdings or HDD Holdings to permit SAN Holdings, Tape Holdings or HDD Holdings, as applicable, to make (or the subordinated Guarantee by HDD Holdings of investments Tape Holdings's obligation to make) Permitted Liquidity Event Distributions permitted by Loan Parties in, and loans and advances by Loan Parties Section 6.08(a) (v) to, and Guarantees by Loan Parties of Indebtedness or for the account of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments participants in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)their respective Deferred Compensation Plans;
(e) loans or advances made by Holdings to either Borrower or to any Subsidiary, made by either Borrower to the Borrower other Borrower, to any Subsidiary or to Holdings and made by any Restricted Subsidiary to the Holdings, either Borrower or any other Subsidiary; PROVIDED , provided that (i) any such loans and advances made by Holdings, either Borrower or a Subsidiary Loan Party shall be evidenced by a promissory note and, to the extent required by the Collateral and Guarantee Requirement, shall be pledged pursuant to the applicable Pledge Agreement or Foreign Security Agreement and (ii) the amount of such loans and advances made by Core Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, not Core Loan Parties shall be subject to the limitations limitation set forth in clause (dd)(ii) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not provide Guarantee of the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed provided a Guarantee of the Obligations pursuant to the a Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale any release or transfer termination of such Guarantee of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Core Loan Parties that is Guaranteed by any Core Loan Party shall be subject to the limitations limitation set forth in clause (dd)(ii) above;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED , provided that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitionsconsideration) 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, on a cumulative basis during the term of this Agreement, $50,000,000200,000,000 plus the aggregate Net Proceeds received by Holdings, either Borrower or any Subsidiary after the date hereof from any capital contribution or issuance of Equity Interests that are applied to effect Permitted Acquisitions;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90, including Publicly Traded Equity Securities received by Holdings, Seagate Software (Cayman) Holdings, Seagate SAN or Investment Holdings as consideration for any sale permitted by Section 6.05(c);
(j) Guarantees by the Borrowers and the Subsidiaries of leases other than Capital Lease Obligations entered into by any Subsidiary as lessee;
(k) extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;
(l) investments in payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(m) loans or advances to employees, directors and officers not exceeding $5,000,000 in the aggregate at any one time outstanding, in each case, made in the ordinary course of business consistent with prudent business practice;
(n) investments in or acquisitions of stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to either Borrower or any Subsidiary or in satisfaction of judgments;
(o) investments in the form of Hedging Agreements and treasury locks permitted under Section 6.07;
(p) investments, loans, advances, guarantees and acquisitions resulting from a foreclosure by Holdings, either Borrower or any Subsidiary with respect to any secured investment or other transfer of title with respect to any secured investment in default;
(q) investments, loans, advances, guarantees and acquisitions the consideration for which consists solely of shares of common stock of Holdings;
(r) Strategic Investments of Holdings in an amount not to exceed the sum of (i) $70,000,000 and (ii) any Net Proceeds received by Holdings, either Borrower or any Subsidiary (other than a Permitted Spinoff Subsidiary) from sales after the date hereof of (A) existing investments inin an Investment Business, advances (B) future Strategic Investments made pursuant to this paragraph (r) or loans (C) assets received as the consideration for any sale referred to in clause (A) or Guarantees (B) above, in each case not otherwise used (1) for a purpose that would result in a reduction in Net Proceeds or in the amount of Indebtedness ofprepayments required pursuant to Section 2.11, any Person (2) to prepay the Loans in accordance with Section 2.11 or (3) to make a Permitted Liquidity Event Distribution;
(s) capital contributions to CacheVision in an aggregate amount not to exceed $25,000,000 20,000,000;
(t) capital contributions to E2 Open in an aggregate amount not to exceed $12,500,000;
(u) prepayments or advances to vendors or suppliers of semiconductors in connection with any guarantee of supply by, or to fund the expansion of supply capacity by, such vendor or supplier, in an aggregate amount not to exceed $50,000,000 at any one time outstanding;
(v) loans, capital contributions and other payments to SAN Holdings, Tape Holdings or HDD Holdings to permit SAN Holdings, Tape Holdings or HDD Holdings, as applicable, to make (and the subordinated Guarantee by HDD Holdings of Tape Holdings's obligation to make) Permitted Liquidity Event Distributions permitted by Section 6.08(a) (v) to, or for the account of, participants in their respective Deferred Compensation Plans;
(w) capital contributions to Denmark Holdings or Netherlands Holdings in an aggregate amount not to exceed $35,000,000, provided that (i) each such capital contribution is made in cash and (ii) on the same day that any such capital contribution is made, either (A) Denmark Holdings shall contribute in cash the full amount of such capital contribution to a Core Loan Party organized under the laws of Mexico or Japan as common equity or (B) Denmark Holdings shall contribute in cash the full amount of such capital contribution to Netherlands Holdings as common equity and Netherlands Holdings shall contribute in cash the full amount of such capital contribution to a Core Loan Party organized under the laws of Mexico or Japan as common equity; and
(x) loans and advances to continuing members of management of Holdings, the Borrowers and the Subsidiaries in an aggregate principal amount not to exceed $10,000,000, provided that (i) the proceeds of such loans and advances are contributed to Holdings by such members of management as part of the Equity Contribution, (ii) such loans and advances are not reduced, forgiven or otherwise terminated in whole or in part except upon repayment thereof in full and in cash to the applicable Loan Party and (iii) such loans and advances are repaid in full and in cash within 90 days after the Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Veritas Software Technology Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Restricted Subsidiary prior to such merger) any 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsAcquisitions; provided, however, that the Borrower and the wholly owned Subsidiary Loan Parties shall not be permitted to expend greater than an aggregate amount of $12,000,000 of consideration in connection with any Permitted Acquisition in which the Borrower or a wholly owned Subsidiary Loan Party acquires less than all the outstanding Equity Interests of any Person;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by Holdings in Equity Interests of the Borrower and its Restricted by the Borrower and the Subsidiaries in Equity Interests in of their respective Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Collateral Agreement (subject to the limitations applicable to the pledge of Equity Interests of a Foreign Subsidiary referred to in Foreign Subsidiaries set forth in Section 5.12), the definition of the term “Collateral and Guarantee Requirement”) and (ii) the aggregate amount of investments made pursuant to this clause (ii) by Loan Parties in, and loans and advances by in Subsidiaries that are not Loan Parties to, (together with outstanding intercompany loans permitted under clause (ii) to the proviso to paragraph (e) of this Section and outstanding Guarantees by Loan Parties permitted under the proviso to paragraph (f) of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Datethis Section) shall not exceed $25,000,000 12,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale each case determined without regard to any write-downs or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);
(e) loans or advances made by Holdings, the Borrower to any Subsidiary and made by any Restricted Subsidiary to Holdings, the Borrower or any other Subsidiary; PROVIDED , 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 Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject not Loan Parties (together with investments permitted under clause (ii) of the proviso to the limitations set forth in clause paragraph (d) aboveof this Section and outstanding Guarantees permitted under the proviso to paragraph (f) of this Section) shall not exceed $12,000,000 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; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with investments permitted under clause (ii) of the proviso to the limitations set forth in clause paragraph (d) aboveof this Section and intercompany loans permitted under clause (ii) to the proviso to paragraph (e) of this Section) shall not exceed $12,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(g) loans or advances to employees of Holdings, the Borrower or any Subsidiary made in the ordinary course of business not exceeding $2,400,000 in the aggregate outstanding at any time (determined without regard to any writedowns 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 Holdings, 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;
(hj) Permitted Acquisitions; PROVIDED that investments in the sum form of all consideration Swap Agreements permitted by Section 6.07;
(other than common Equity Interests k) investments of Holdings) paid any Person existing at the time such Person becomes a Subsidiary or otherwise delivered consolidates or merges with the Borrower or any Subsidiary (including in connection with a Permitted Acquisitions Acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger;
(including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds l) investments resulting from Prepayment Events pledges or deposits described in clause (ac) or (d) of the definition of the term Prepayment Event that are applied, “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 payable or dischargeable in accordance with Section 2.11(c)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;
(o) investments, loans and advances by the Borrower or any Subsidiary in or to make Foreign Subsidiaries and foreign entities that are not Foreign Subsidiaries, in an aggregate amount, as valued at cost at the time each such Permitted Acquisitions) plus investment, loan or advance is made and including all related commitments for future investments, loans or advances (and the aggregate principal amount of all any Indebtedness that is assumed or otherwise incurred or assumed in connection withwith such investment, loan or resulting fromadvance), Permitted Acquisitions not exceeding in the aggregate for all such investments made from and after the Effective Date (including Indebtedness plus an amount equal to any returns of capital or sale proceeds actually received in cash in respect of any acquired Persons outstanding at such investments) an amount equal to $18,000,000 plus the time amount of the applicable Permitted Acquisition) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any equity contributions made to Holdings (and to the Borrower or the applicable Subsidiary as common equity) and (ii) the net cash proceeds contributed to the Borrower (and to any applicable Subsidiary) as common equity from the issuance of any Indebtedness of Holdings (the “Specified Holdings Indebtedness”) that (A) is subordinated to the Obligations on terms and conditions acceptable to the Administrative Agent, (B) provides for payment of interest in kind, in lieu of cash, at the option of Holdings and (C) is otherwise on terms and conditions (including all economic terms and absence of covenants) acceptable to the Administrative Agent;
(p) investments by Borrower or any Subsidiary in Holdings for purposes and in amounts that would otherwise be permitted as Restricted Payments to Holdings pursuant to Section 6.08; and
(q) other investments, loans and advances by the Borrower or any Subsidiary (other than any investment in or loans loan or advance to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(ja Foreign Subsidiary or foreign entity that is not a Foreign Subsidiary) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount, as valued at cost at the time each such investment, loan or advance is made and including all related commitments for future investments, loans or advances (and the principal amount of any Indebtedness that is assumed or otherwise incurred in connection with such investment, loan or advance), not exceeding $12,000,000 in the aggregate for all such investments made from and after the Effective Date (plus an amount equal to exceed $25,000,000 at any time outstandingreturns of capital or sale proceeds actually received in cash in respect of any such investments). The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment (other than adjustments for the repayment of, or the refund of capital with respect to, the original principal amount of any such Investment).
Appears in 1 contract
Samples: Second Lien Credit Agreement (RedPrairie Holding, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower will not, and Holdings and the Borrower will not permit any of its the Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investments;
(c) investments existing on the date hereof Restatement Effective Date and set forth on Schedule 6.04;
(dc) investments by the Borrower and its the Restricted Subsidiaries that are Loan Parties in Equity Interests in their respective Restricted Subsidiaries that are Loan Parties and investments by Restricted Subsidiaries that are not Loan Parties in Equity Interests in their respective Restricted Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge voting stock of a Foreign Subsidiary and Equity Interests in Foreign Subsidiaries set forth the China JV referred to in Section 5.12), (ii) the aggregate amount definition of investments by Loan Parties in, the term “Collateral and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionGuarantee Requirement”);
(ed) loans or advances made by the Borrower any Loan Party to any Subsidiary other Loan Party and made by any Restricted Subsidiary that is not a Loan Party to the Borrower or any other Restricted Subsidiary; PROVIDED , provided that (subject to the amount proviso to clause (c) of the definition of “Collateral and Guarantee Requirement”) any such loans and advances made by a Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, Party shall be subject evidenced by a promissory note pledged pursuant to the limitations set forth Pledge Agreement;
(e) Guarantees by any Loan Party of Indebtedness of any other Loan Party and Guarantees by any Restricted Subsidiary that is not a Loan Party of Indebtedness of any other Restricted Subsidiary that is not a Loan Party, in clause (d) aboveeach case provided that the Indebtedness so Guaranteed is permitted by Section 6.01;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above;
(g) 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;
(hg) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(ih) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; ;
(i) Guarantees by the Borrower and 95 90the Restricted Subsidiaries of leases entered into by any Restricted Subsidiary as lessee;
(j) extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;
(k) investments in payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(l) loans or advances to employees made in the ordinary course of business consistent with prudent business practice and not exceeding $5,000,000 in the aggregate outstanding at any one time;
(m) 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 Restricted Subsidiary or in satisfaction of judgments;
(n) investments in the form of Hedging Agreements permitted under Section 6.07;
(o) investments by the Borrower or any Restricted Subsidiary in (i) the capital stock of a Receivables Subsidiary and (ii) other interests in a Receivables Subsidiary, in each case to the extent determined by the Borrower in its judgment to be reasonably necessary in connection with or required by the terms of the Permitted Receivables Financing;
(p) investments, loans, advances, guarantees and acquisitions resulting from a foreclosure by Holdings, the Borrower or any Restricted Subsidiary with respect to any secured investment or other transfer of title with respect to any secured investment in default;
(q) investments, loans, advances, guarantees and acquisitions the consideration for which consists solely of shares of common stock of Holdings;
(r) investments inby the Borrower in Equity Interests issued by the Czech Subsidiary pursuant to conversions of Indebtedness of the Czech Subsidiary permitted by Section 6.08(b)(viii);
(s) the licensing from other Persons by the Borrower and the Restricted Subsidiaries of intellectual property in accordance with normal industry practice; provided that if such licensing involves the effective acquisition of any business of another Person it must be otherwise permitted by this Section 6.04; and
(t) other investments, loans, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstandingthe amount available pursuant to the Investment/RP Basket.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Neither Holdings nor the Borrower will, nor will not, and will not they permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Restricted Subsidiary prior to such merger) any 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, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted InvestmentsAcquisitions; provided, however, that the Borrower and the wholly owned Subsidiary Loan Parties shall not be permitted to expend greater than an aggregate amount of $10,000,000 of consideration in connection with any Permitted Acquisition in which the Borrower or a wholly owned Subsidiary Loan Party acquires less than all the outstanding Equity Interests of any Person;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by Holdings in Equity Interests of the Borrower and its Restricted by the Borrower and the Subsidiaries in Equity Interests in of their respective Subsidiaries; PROVIDED , provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Collateral Agreement (subject to the limitations applicable to the pledge of Equity Interests of a Foreign Subsidiary referred to in Foreign Subsidiaries set forth in Section 5.12), the definition of the term “Collateral and Guarantee Requirement”) and (ii) the aggregate amount of investments made pursuant to this clause (ii) by Loan Parties in, and loans and advances by in Subsidiaries that are not Loan Parties to, (together with outstanding intercompany loans permitted under clause (ii) to the proviso to paragraph (e) of this Section and outstanding Guarantees by Loan Parties permitted under the proviso to paragraph (f) of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Datethis Section) shall not exceed $25,000,000 10,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale each case determined without regard to any write-downs or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);
(e) loans or advances made by Holdings, the Borrower to any Subsidiary and made by any Restricted Subsidiary to Holdings, the Borrower or any other Subsidiary; PROVIDED , 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 Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject not Loan Parties (together with investments permitted under clause (ii) of the proviso to the limitations set forth in clause paragraph (d) aboveof this Section and outstanding Guarantees permitted under the proviso to paragraph (f) of this Section) shall not exceed $10,000,000 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; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, not Loan Parties that is Guaranteed by any Loan Party shall be subject (together with investments permitted under clause (ii) of the proviso to the limitations set forth in clause paragraph (d) aboveof this Section and intercompany loans permitted under clause (ii) to the proviso to paragraph (e) of this Section) shall not exceed $10,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);
(g) loans or advances to employees of Holdings, the Borrower or any Subsidiary made in the ordinary course of business not exceeding $2,000,000 in the aggregate outstanding at any time (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 Holdings, 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;
(hj) Permitted Acquisitions; PROVIDED that investments in the sum form of all consideration Swap Agreements permitted by Section 6.07;
(other than common Equity Interests k) investments of Holdings) paid any Person existing at the time such Person becomes a Subsidiary or otherwise delivered consolidates or merges with the Borrower or any Subsidiary (including in connection with a Permitted Acquisitions Acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger;
(including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds l) investments resulting from Prepayment Events pledges or deposits described in clause (ac) or (d) of the definition of the term Prepayment Event that are applied, “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 payable or dischargeable in accordance with Section 2.11(c)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;
(o) investments, loans and advances by the Borrower or any Subsidiary in or to make Foreign Subsidiaries and foreign entities that are not Foreign Subsidiaries, in an aggregate amount, as valued at cost at the time each such Permitted Acquisitions) plus investment, loan or advance is made and including all related commitments for future investments, loans or advances (and the aggregate principal amount of all any Indebtedness that is assumed or otherwise incurred or assumed in connection withwith such investment, loan or resulting fromadvance), Permitted Acquisitions not exceeding in the aggregate for all such investments made from and after the Effective Date (including Indebtedness plus an amount equal to any returns of capital or sale proceeds actually received in cash in respect of any acquired Persons outstanding at such investments) an amount equal to $15,000,000 plus the time amount of the applicable Permitted Acquisition) shall not exceed, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any equity contributions made to Holdings (and to the Borrower or the applicable Subsidiary as common equity) and (ii) the net cash proceeds contributed to the Borrower (and to any applicable Subsidiary) as common equity from the issuance of any Indebtedness of Holdings (the “Specified Holdings Indebtedness”) that (A) is subordinated to the Obligations on terms and conditions acceptable to the Administrative Agent, (B) provides for payment of interest in kind, in lieu of cash, at the option of Holdings and (C) is otherwise on terms and conditions (including all economic terms and absence of covenants) acceptable to the Administrative Agent;
(p) investments by Borrower or any Subsidiary in Holdings for purposes and in amounts that would otherwise be permitted as Restricted Payments to Holdings pursuant to Section 6.08; and
(q) other investments, loans and advances by the Borrower or any Subsidiary (other than any investment in or loans loan or advance to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(ja Foreign Subsidiary or foreign entity that is not a Foreign Subsidiary) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount, as valued at cost at the time each such investment, loan or advance is made and including all related commitments for future investments, loans or advances (and the principal amount of any Indebtedness that is assumed or otherwise incurred in connection with such investment, loan or advance), not exceeding $10,000,000 in the aggregate for all such investments made from and after the Effective Date (plus an amount equal to exceed $25,000,000 at any time outstandingreturns of capital or sale proceeds actually received in cash in respect of any such investments). The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment (other than adjustments for the repayment of, or the refund of capital with respect to, the original principal amount of any such Investment).
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The No Borrower will, nor will not, and will not it permit any of its Restricted Subsidiaries other Loan Party to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or 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) make any assets of any other Person constituting a business unitAcquisition, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investmentsexisting investments and advances described on Schedule 6.04 hereto, but no increase in the amount thereof;
(c) investments existing on the date hereof and set forth on Schedule 6.04loans or advances solely among Loan Parties;
(d) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall if no Default exists or would be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12)caused thereby, (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition);
(e) loans or advances made by the Borrower to any Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Subsidiary; PROVIDED that the amount of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiaries, shall be subject to the limitations set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED , provided that (i) a Restricted Subsidiary shall not Guarantee no Default exists at the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed time of, or would be caused by, the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests incurrence of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) aboveGuarantees;
(ge) 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;
(hf) the Loan Parties may create one or more Subsidiaries to conduct the business of the Borrowers in accordance with Section 5.03 so long as such Subsidiaries promptly after their creation become Guarantors;
(g) Permitted Acquisitions; PROVIDED that the sum of all consideration and
(other than common Equity Interests of Holdingsh) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price addition to investments, loans and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause advances permitted by paragraphs (a) of through (g) above, other investments, loans and advances by the definition of Borrowers and the term Prepayment Event Guarantors provided that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an the aggregate amount not invested, loaned or advanced pursuant to exceed $25,000,000 at any time outstanding.this paragraph
Appears in 1 contract
Samples: Floor Plan First Lien Credit Agreement (Alta Equipment Group Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Restricted Subsidiary of the Borrower prior to such merger) any Equity Interests in or 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 unitunit (whether through purchase of assets, merger or otherwise) or, in the case of any Excluded Subsidiary Guarantor, purchase or otherwise acquire any assets of any other Person, except:
(a) Permitted Investments, subject to control agreements in favor of the AcquisitionCollateral Agent for the benefit of the Secured Parties or otherwise subject to a perfected security interest in favor of the Collateral Agent for the benefit of the Secured Parties;
(b) Permitted Investments;
(c) investments existing in existence on the date hereof Effective Date and described in Schedule 6.04, it being understood and agreed that working capital advances to the Excluded Subsidiary Guarantors listed on Schedule 6.04 may be repaid and reborrowed from time to time as long as the outstanding amount of such working capital advances does not exceed the amount set forth for such Excluded Subsidiary Guarantor on Schedule 6.04;
(dc) investments by the Borrower and its Restricted Subsidiaries in Equity Interests in their respective Subsidiaries; PROVIDED provided that (i) any such Equity Interests in a Subsidiary held by a Loan Party shall be pledged pursuant to the Pledge Security Agreement (subject to the limitations applicable to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), and (ii) the aggregate amount of investments by the Loan Parties in, and loans and advances by in Subsidiaries of the Borrower that are not Loan Parties to, or in the Excluded Subsidiary Guarantors (together with outstanding intercompany loans permitted under clause (B) of the proviso to Section 6.04(d) and outstanding Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees existing on permitted under the Effective Dateproviso to Section 6.04(e)) shall not exceed $25,000,000 250,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale each case determined without regard to any write-downs or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or dispositionwrite-offs);
(ed) loans or advances made by the Borrower to any Subsidiary of its Subsidiaries and made by any Restricted Subsidiary of the Borrower to the Borrower or any other SubsidiarySubsidiary of the Borrower; PROVIDED provided that (A) any such loans and advances made by a Loan Party (other than to another Loan Party) shall be evidenced by a promissory note pledged pursuant to the Security Agreement and (B) the amount of such loans and advances made by the Loan Parties to Unrestricted Subsidiaries, Subsidiaries of the Borrower that are not Loan Parties or to Restricted Subsidiaries the Excluded Subsidiary Guarantors (together with all outstanding investments permitted under clause (B) to the proviso to Section 6.04(c) and all outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $250,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs); it being understood and agreed that are Foreign Subsidiariesany accounts payable of an Excluded Subsidiary Guarantor to a Loan Party arising in the ordinary course of business pursuant to commercial agreements (other than agreements providing for funded Indebtedness) entered into on arm’s length terms in accordance with Section 6.09(a), shall not be subject deemed to be loans or advances by the applicable Loan Party to the limitations set forth in clause (d) aboveapplicable Excluded Subsidiary Guarantor for purposes of this Section 6.04;
(fe) Guarantees constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, Subsidiaries of the Borrower that are not Loan Parties or of Restricted Subsidiaries that are Foreign Subsidiaries, the Excluded Subsidiary Guarantors that is Guaranteed by any Loan Party shall be subject (together with outstanding investments permitted under clause (B) to the limitations set forth in clause (d) above;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED that the sum of all consideration (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(c), to make such Permitted Acquisitions) 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, on a cumulative basis during the term of this Agreement, $50,000,000;
(i) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
(j) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount not to exceed $25,000,000 at any time outstanding.proviso to
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any optionoptions, warrant warrants or other right rights 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 referred to as "Investments"), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting that constitute a business unitunit or that are substantial in relation to the Company and the Subsidiaries taken as a whole, except:
(a) the AcquisitionPermitted Investments;
(b) Permitted Investments;
(c) investments Investments existing on the date hereof and set forth on Schedule 6.046.06;
(dc) investments Investments by the Borrower Company and its Restricted the Subsidiaries in Equity Interests in of their respective Subsidiaries (including capital contributions to such Subsidiaries); PROVIDED provided that (i) any such Equity Interests in a Subsidiary Investments held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject Security Documents to the limitations applicable extent required in order for the Collateral and Guarantee Requirement to the pledge of Equity Interests in Foreign Subsidiaries set forth in Section 5.12), be satisfied and (ii) the aggregate amount of investments Investments by Loan Parties in, and loans and advances by in Subsidiaries that are not Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Unrestricted Subsidiaries (including all such investments, loans, advances and Guarantees Investments existing on the Effective Datedate hereof) shall not exceed $25,000,000 1,000,000 at any time outstanding (it being understood that, for purposes of determining outstanding investments in Unrestricted Subsidiaries, the sale or disposition by a Loan Party of an investment in an Unrestricted Subsidiary shall be deemed to reduce investments in Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition) and (iii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Restricted Subsidiaries that are Foreign Subsidiaries (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed 5% of Total Assets at any time outstanding (it being understood that, for purposes of determining outstanding investments in Restricted Subsidiaries that are Foreign Subsidiaries, the sale or disposition by a Loan Party of an investment in a Restricted Subsidiary that is a Foreign Subsidiary shall be deemed to reduce investments in Restricted Subsidiaries that are Foreign Subsidiaries by an amount equal to the Net Proceeds of such sale or disposition)outstanding;
(ed) loans or advances made by the Borrower Company to any Subsidiary and made by any Restricted Subsidiary to the Borrower Company or any other Subsidiary, and Guarantees by the Company of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Company or any other Subsidiary; PROVIDED provided that the amount aggregate amount, without duplication, of such loans and advances made by Loan Parties to Unrestricted Subsidiaries, or to Restricted Subsidiaries that are Foreign Subsidiariesnot Loan Parties, and all such Guarantees by Loan Parties of the Indebtedness of Subsidiaries that are not Loan Parties, shall be subject not exceed $5,000,000 at any time outstanding;
(e) the Company may make any Permitted Acquisition, provided that the Company complies, and causes any acquired entity to comply, with the applicable provisions of Section 5.11 and the Security Documents with respect to the limitations set forth in clause (d) abovePerson or assets so acquired;
(f) Guarantees (other than Guarantees by the Company or any Subsidiary of Indebtedness of the Company or any Subsidiary) constituting Indebtedness permitted by Section 6.01; PROVIDED provided that (i) a Restricted Subsidiary shall not Guarantee the Subordinated Debt unless Notes or the Series B Notes (A) such Restricted Subsidiary also has Guaranteed as defined in the Obligations pursuant to the Guarantee Securities Purchase 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 the sale or transfer of the Equity Interests of such Restricted Subsidiary as a result of a foreclosure of the Lien on such Equity Interests that secures the Obligations, where (1) after such sale or transfer, such Restricted Subsidiary is no longer a Subsidiary and (2) the Net Proceeds resulting from such sale or transfer are applied in accordance with the terms of the Subordinated Debt Documents that would apply to a sale of such Equity Interests by the Borrower, and (ii) the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries, or of Restricted Subsidiaries that are Foreign Subsidiaries, that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clause (d) above);
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) Permitted Acquisitions; PROVIDED that subject to the sum of all consideration proviso to paragraph (other than common Equity Interests of Holdings) paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value of any other non-cash consideration but excluding the amount of Net Proceeds from Prepayment Events described in clause (a) of the definition of the term Prepayment Event that are applied, in accordance with Section 2.11(ci), to make such Permitted Acquisitions) plus loans or advances less than $100,000 made by the aggregate principal amount Company or any Subsidiary in the ordinary course 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, on a cumulative basis during the term of this Agreement, $50,000,000;business; and
(i) loans or advances made by any investments in or Loan Party to an employee of such Loan Party; provided that the aggregate loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.05; and 95 90
advances under this paragraph (ji) any other investments in, advances or loans to or Guarantees of Indebtedness of, any Person in an aggregate amount shall not to exceed $25,000,000 at any time outstanding500,000.
Appears in 1 contract
Samples: Credit Agreement (Labone Inc/)
