Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliates, except: (a) Permitted Investments; (b) investments by the Parent Borrower or a Subsidiary in the capital stock of its Subsidiaries; (c) loans or advances made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Subsidiary; (d) Guarantees constituting Indebtedness permitted by Section 6.01; (e) advances or loans made in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries; (f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto; (g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary; (h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09; (i) Swap Agreements not entered into for speculative purposes; and (j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons.
Appears in 3 contracts
Samples: Credit Agreement (Ralph Lauren Corp), Credit Agreement (Ralph Lauren Corp), Credit Agreement (Polo Ralph Lauren Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries (other than WEX Bank) to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliates(an “Investment”), except:
(a) Permitted InvestmentsInvestments and investments that were Permitted Investments when made;
(b) investments Investments existing on the date hereof or required to be made pursuant to a contractual obligation in existence on the date hereof and any extensions or renewals thereof, in either case as set forth in Schedule 6.06;
(c) Investments by the Parent Borrower or a Subsidiary existing on the date hereof in the capital stock of its SubsidiariesSubsidiaries or in the capital stock of any Subsidiary Guarantor;
(cd) loans or advances Investments made by the Parent Borrower to, to any Material Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Material Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Material Subsidiary and Investments made by any non-Material Subsidiary to any other non-Material Subsidiary;
(de) Guarantees constituting Indebtedness permitted by Section 6.016.03;
(ef) advances Investments in connection with pledges, deposits, payments or loans performance bonds made or given in the ordinary course of business in connection with or to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted secure statutory, regulatory or similar obligations including obligations under this Agreement and described in Schedule 6.05 heretoinsurance, health, disability, safety or environmental obligations;
(g) Investments received in connection with the bona fide bankruptcy or reorganization of, or settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower delinquent accounts and disputes with, customers, suppliers or any Subsidiaryother Person;
(h) Permitted Acquisitions; provided that ifInvestments received as part of a redemption or payment of or for, as a result of a Permitted Acquisitiondividend on, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor distribution in accordance with Section 5.09respect of, other Investments permitted by this Section;
(i) Swap Agreements not entered into for speculative purposes; andPermitted Acquisitions;
(j) Investments, in addition to Investments not otherwise permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof hereunder in an aggregate amount not to exceed $500,000,000 10,000,000 during the term of this Agreement;
(k) Investments by the Borrower or its Subsidiaries in accounts receivable owing to them, if created or acquired in the ordinary course of business and payable in accordance with customary trade terms (including the dating of accounts receivable and extensions of payments in the ordinary course of business);
(l) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05;
(m) (i) loans and advances to employees of the Borrower or any Subsidiary in the ordinary course of business not to exceed $500,000 in the aggregate at any time outstanding (calculated without regard to write-down or write-offs thereof) and (ii) advances of payroll payments and expenses to employees in the ordinary course of business;
(n) Hedging Agreements permitted by Section 6.07;
(o) additional Investments made from time to time to the extent made with proceeds of non-mandatorily convertible Equity Interests of the Borrower;
(p) Investments of a Subsidiary acquired after the Closing Date or of a Person merged into or Persons.consolidated with the Borrower or any Subsidiary in accordance with Section 6.05 after the Effective Date 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;
(q) Investments constituting loans and other extensions of credit made to customers of WEX Bank pursuant to one or more participation agreements with WEX Bank in an aggregate amount not exceeding (i) $30,000,000 in 2005 and (ii) in each fiscal year thereafter, the amount which is twenty per cent in excess of the aggregate principal amount permitted in the prior fiscal year;
(r) Investments constituting loans and other extensions of credit made to customers of the Borrower and its Subsidiaries’ co-branded relationships;
(s) Investments constituting loans and other extensions of credit made in connection with diesel fuel sales in an aggregate amount not to exceed $2,000,000 at any time outstanding; and
(t) Investments of the Borrower to any Subsidiary (other than a Material Subsidiary) and of any Subsidiary (other than a Material Subsidiary) to the Borrower or any other Material Subsidiary; provided that the aggregate amount of such Investments permitted by this clause (t), together with Indebtedness permitted by Section 6.03 (d) shall not exceed $10,000,000 at any time outstanding;
Appears in 2 contracts
Samples: Credit Agreement (Wright Express CORP), Credit Agreement (Wright Express CORP)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary existing on the date hereof in the capital stock of its Subsidiaries;
(c) loans or advances made by the Parent Borrower to, to any Guarantor and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other SubsidiaryGuarantor;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances Acquisitions meeting the following requirements or loans made otherwise approved by the Required Lenders (each such Acquisition constituting a “Permitted Acquisition”):
(i) as of the date of the consummation of such Acquisition, no Default shall have occurred and be continuing or would result from such Acquisition, and the representation and warranty contained in Section 5.08 shall be true both before and after giving effect to such Acquisition;
(ii) such Acquisition is consummated on a non-hostile basis pursuant to a negotiated acquisition agreement approved by the ordinary course board of directors or other applicable governing body of the seller or entity to be acquired, and no material and credible challenge to such Acquisition (excluding the exercise of appraisal rights) by any shareholder or director of the seller or entity to be acquired shall be pending;
(iii) the business to be acquired in such Acquisition is similar or related to one or more of the lines of business to employees of in which the Parent Borrower and its SubsidiariesSubsidiaries are engaged on the Effective Date;
(iv) as of the date of the consummation of such Acquisition, all material approvals required in connection therewith shall have been obtained; and
(v) after giving pro forma effect to such Acquisition, the Net Adjusted Leverage Ratio shall not exceed 3.75 to 1.0.
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with investments by the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; Guarantor in any Subsidiary that is not a Guarantor, investments in joint ventures and other Investments in any other Persons, provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary the aggregate amount of investments made pursuant to this clause (f) after the Effective Date shall be created not exceed $175,000,000 and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary after giving pro forma affect to such investment, the Net Adjusted Leverage Ratio shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party not exceed 3.75 to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons1.0.
Appears in 2 contracts
Samples: Loan Agreement (Cheesecake Factory Inc), Loan Agreement (Cheesecake Factory Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and nor will not it permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness 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 or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) the Merchant's Acquisition; capital investments by in any Subsidiary (provided that the Parent Borrower Subsidiary is in existence on the Effective Date or becomes a Subsidiary at any time after the Effective Date in the capital stock a manner which complies with all other provisions of its Subsidiariesthis Agreement without giving effect to this clause (b)); and other investments and loans as otherwise described in Schedule 6.04(b);
(c) loans or advances made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Wholly-Owned Subsidiary to any Wholly-Owned Subsidiary;
(d) Guarantees constituting Indebtedness loans and advances to, purchases of equity interests in and contributions to the capital of Joint Ventures and other Persons, not otherwise permitted by pursuant to this Section, provided that the aggregate amount of such investments, plus the aggregate amount of the obligations guaranteed pursuant to Section 6.016.01(i)(y), shall not exceed $20,000,000 at any one time; (Joint Venture profits and losses that are passed through to its equity holders shall not be included in the calculation of the aggregate amount of such investments);
(e) advances investments in evidences of Indebtedness representing amounts formerly constituting accounts receivable owed to the Borrower or loans made any Subsidiary in the ordinary course of business to employees of the Parent Borrower and its Subsidiariesbusiness;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments Guarantees permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons.6.01;
Appears in 2 contracts
Samples: Credit Agreement (TBC Corp), Credit Agreement (TBC Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee 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 unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its AffiliatesAcquisition, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its Subsidiaries;
(c) loans or advances made by the Parent Borrower to, to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;; and
(e) advances any merger or loans made Acquisition if (i) such merger involves any Borrower, such Borrower shall be the surviving or continuing corporation thereof, (ii) immediately before and after giving effect such merger or acquisition, no Event of Default or Unmatured Default shall exist or shall have occurred and be continuing and the representations and warranties contained in Article III and in the ordinary course of business to employees other Loan Documents shall be true and correct on and as of the Parent date thereof (both before and after such merger or Acquisition is consummated) as if made on the date such merger or acquisition is consummated, (iii) at least 10 Business Days’ prior to the consummation of such merger or acquisition, the Borrower shall have provided to the Administrative Agent a certificate of the Chief Financial Officer or Treasurer of the Borrower (attaching pro forma computations acceptable to the Administrative Agent to demonstrate compliance with all financial covenants hereunder, and its Subsidiaries;
(f) existing Investments a pro forma Leverage Ratio of not otherwise permitted more than 2.75 to 1.0), each stating that such merger or acquisition complies with this Section 6.04(e), all laws and regulations and that any other conditions under this Agreement relating to such transaction have been satisfied, and described such certificate shall contain such other information and certifications as requested by the Administrative Agent and be in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed form and substance satisfactory to the Parent Administrative Agent, (iv) at least 10 Business Days’ prior to the consummation of such merger or acquisition, the Borrower shall have delivered all acquisition documents and other agreements and documents relating to such merger or acquisition, and the Administrative Agent shall have completed a satisfactory review thereof and completed such other due diligence satisfactory to the Administrative Agent, (v) the Borrower shall, at least 10 Business Days prior to the consummation of merger or acquisition, provide such other certificates and documents as requested by the Administrative Agent, in form and substance satisfactory to the Administrative Agent, (vi) the target of such merger or Acquisition is in the same line of business as the Borrower or any a Subsidiary;
, and (hvii) Permitted Acquisitions; provided that if, as a result such merger or Acquisition is not opposed by the board of a Permitted Acquisition, directors (ior similar governing body) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) selling person or (ii) any then existing Domestic Subsidiary shall become the person whose equity interests are to be acquired, unless the Administrative Agent consents to such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person merger or PersonsAcquisition.
Appears in 2 contracts
Samples: Credit Agreement (Spartan Motors Inc), Credit Agreement (Spartan Motors Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent 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 or amalgamation with any Person that was not a wholly owned Loan Party and a Wholly Owned Subsidiary of the Company prior to such mergermerger or amalgamation) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (whether through purchase of assets, merger, amalgamation or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesotherwise) (collectively, “Investments”), except:
(a) Permitted Investments, subject to, in the case of Loan Parties, control agreements in favor of the Administrative Agent (in each case for the benefit of the Secured Parties) or otherwise subject to a perfected security interest in favor of the Administrative Agent (in each case for the benefit of the Secured Parties);
(b) investments by (and commitments (including consummation of any “put” arrangement in connection therewith) in respect thereof) in existence on the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesThird Restatement Date and described on Schedule 6.04 and renewals, replacements and extensions thereof;
(c) investments made by (i) any Borrower to any other Borrower, any Restricted Subsidiary, any Specified Excluded Subsidiary or any Joint Venture or (ii) any Subsidiary to any Borrower, any other Restricted Subsidiary, any Specified Excluded Subsidiary or any Joint Venture; provided that in the case of any investments made pursuant to this paragraph (c) after the Third Restatement Date by Loan Parties in Subsidiaries that are not Loan Parties or are Specified Excluded Subsidiaries or in Joint Ventures, 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;
(d) loans or advances made by the Parent (i) any Borrower to, and Guarantees by the Parent Borrower of obligations ofto any other Borrower, any Restricted Subsidiary, any Specified Excluded Subsidiary or any Joint Venture or (ii) any Restricted Subsidiary to any Borrower, any other Restricted Subsidiary, any Specified Excluded Subsidiary or any Joint Venture, provided that in the case of any loans and loans or advances made by any Subsidiary toLoan Parties to Restricted Subsidiaries that are not Loan Parties or to Specified Excluded Subsidiaries or to Joint Ventures, both immediately before and Guarantees by any Subsidiary immediately after giving pro forma effect thereto, no Default or Event of obligations ofDefault 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, the Parent Borrower or any other Subsidiaryincluding Aggregate Availability of at least $400,000,000;
(de) Guarantees constituting Indebtedness permitted by Section 6.01, provided that in the case of any Indebtedness of Restricted Subsidiaries that are not Loan Parties, Indebtedness of Specified Excluded Subsidiaries or Indebtedness of Joint Ventures that, in each case, is Guaranteed by any Loan 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 Restricted Subsidiary that is not a Loan Party or which is a Specified Excluded Subsidiary or in a Joint Venture, in each case of the types described in paragraphs (c), (d) and (e) advances 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 5 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 Restricted 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 to employees of in connection with the Parent Borrower Company’s and its Restricted 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 5 Minimum Aggregate Availability Period shall be in effect.
(h) loans or advances made by any Loan Party and the Restricted 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;
(fi) existing Investments not otherwise permitted under this Agreement subject to the applicable provisions of any Security Agreements (including Sections 4.2(a) and described 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 Schedule 6.05 heretothe ordinary course of business, consistent with past practices;
(gj) Investments 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 Restricted Subsidiary or consolidates or merges with a Borrower or any Restricted Subsidiary (including in connection with a Permitted Acquisition), so long as such investments were not made in contemplation of such Person becoming a Restricted Subsidiary or of such merger;
(l) investments received in connection with the bona fide settlement 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 and other Investments subject to satisfaction of the Payment Conditions;
(o) intercompany investments made in connection with the Corporate Reorganization, including any defaulted Indebtedness or other liability owed to permitted under Section 6.01(m);
(p) option, warrant and similar derivative transactions entered into by the Parent Company in connection with a Permitted Convertible Notes Offering;
(q) Guarantees by any Borrower or any SubsidiaryRestricted Subsidiary of leases or other obligations of any Borrower or any Restricted Subsidiary that do not constitute Indebtedness, in each case entered into in the ordinary course of business, and performance guarantees by the Borrower or any of its Restricted Subsidiaries entered into in connection with a Permitted Bundled Contract Sale, and solely to the extent constituting a Standard Undertaking in respect thereof;
(hr) Permitted Acquisitionsinvestments made by Loan Parties in Restricted Subsidiaries that are not Loan Parties or in Specified Excluded Subsidiaries; provided that if, as a result such investments are part of a Permitted Acquisitionseries of substantially simultaneous investments by Loan Parties in other Loan Parties that results in substantially all the proceeds of the initial investment being invested, loaned or advanced in one or more Loan Parties; and
(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) a new Domestic Subsidiary no Default or Event of Default shall have occurred and be created continuing and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary no Level 5 Minimum Aggregate Availability Period shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to be in effect; provided further that the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to aggregate principal amount of all Investments permitted under clauses by this paragraph (as) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount shall not to exceed $500,000,000 150,000,000 in any Person or Personsfiscal year of the Company.
Appears in 2 contracts
Samples: Second Amendment (ODP Corp), Credit Agreement (Office Depot 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 Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness 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 or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments existing on the date hereof and set forth on Schedule 6.04;
(c) Permitted Acquisitions;
(d) investments by the Parent Borrower and the Subsidiaries in their respective Subsidiaries that exist immediately prior to any applicable transaction; provided that (i) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Pledge Agreement or a Subsidiary any applicable Foreign Security Documents, as the case may be, to the 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, Subsidiaries that are not Domestic Loan Parties made after the capital stock of its SubsidiariesClosing Date shall not at any time exceed $100,000,000;
(ce) loans or advances made by the Parent Borrower to, to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary; provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement or any applicable Foreign Security Documents, as the case may be, and (ii) the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (d) above;
(df) Guarantees constituting Indebtedness permitted by Section 6.016.01(a)(vii);
(eg) advances investments arising as a result of the Permitted Receivables 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;
(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;
(j) 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;
(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 to employees of consistent with prudent business practice and not exceeding $5,000,000 in the Parent Borrower and its Subsidiariesaggregate outstanding at any one time;
(fm) existing Investments not otherwise investments in the form of Hedging Agreements permitted under this Agreement and described in Schedule 6.05 heretoSection 6.07;
(gn) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to 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;
(ho) Permitted Acquisitions; provided payroll, travel and similar advances to cover matters that if, are expected at the time of such advances ultimately to be treated as a result expenses for accounting purposes and that are made in the ordinary course of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09business;
(ip) Swap Agreements not entered into for speculative purposes; andPermitted Joint Venture and Foreign Subsidiary Investments;
(jq) Investmentsinvestments, loans or advances in addition to Investments those permitted under by clauses (a) through (hp) above not exceeding in the aggregate $100,000,000 at any time outstanding;
(r) investments made (i) in an amount not to exceed the Net Proceeds of this Section 6.05any issuance of Equity Interests in Holdings issued on or after September 1, but including Investments permitted under Section 6.04(b), made after 2013 or (ii) with Equity Interests in Holdings; and
(s) investments by the date hereof Parent Borrower or any Subsidiary in an aggregate amount not to exceed $500,000,000 in any Person or Personsthe Available Amount.
Appears in 2 contracts
Samples: Incremental Facility Agreement (Trimas Corp), Credit Agreement (Trimas Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Parent Borrower or a Subsidiary 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 in the capital stock Equity Interests of its their respective Subsidiaries;
(cd) loans or advances made by the Parent Borrower to, to any Subsidiary of the Borrower (or to Holdings) and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower to the Borrower or any other SubsidiarySubsidiary of the Borrower;
(de) Guarantees constituting by the Borrower and its Subsidiaries of obligations of the Borrower or any of its Subsidiaries; provided that any such Guarantees by Subsidiaries of the Borrower of obligations of the Borrower shall be limited to Guarantees of Indebtedness that are permitted by Section 6.01;
(ef) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 heretobusiness;
(g) Investments 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 connection with the bona fide settlement of an aggregate principal amount not exceeding $5,000,000 at any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiarytime outstanding;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements loans or advances to employees in the ordinary course of business; provided that the aggregate amount of all loans and advances permitted by this clause (i) shall not entered into for speculative purposesexceed $750,000 at any time outstanding;
(j) 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 (j) shall not exceed $2,000,000 at any time outstanding;
(k) investments incurred in connection with Deferred Compensation Obligations; and
(jl) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof other investments in an aggregate amount not to exceed exceeding $500,000,000 in 50,000,000 at any Person or Personstime outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Advance Auto Parts Inc), Credit Agreement (Advance Auto Parts Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) make any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its AffiliatesAcquisition, except:
(a) Permitted Investments;
(b) investments by Investments, loans and advances existing on the Parent Borrower or a Subsidiary date hereof and set forth in Schedule 6.04 and extensions, renewals and replacements thereof that do not increase the capital stock of its Subsidiariesoutstanding 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, loans or advances made by the Parent Borrower toCompany or any Subsidiary to the Company or any Subsidiary (including, and Guarantees by for the Parent Borrower avoidance of obligations ofdoubt, any Subsidiarysuch Investments, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, incurred in connection with the Parent Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01Acquisition);
(e) advances or loans made in the ordinary course of business to employees Additional Acquisitions, provided that: (i) before and after giving pro forma effect thereto (as of the Parent Borrower end of the most recently ended Fiscal Quarter of the Company), no Default exists or would be caused thereby and its Subsidiaries(ii) if such Additional Acquisition involves the acquisition of Equity Interests, the consummation of such Additional Acquisition has been recommended by the Board of Directors and management of the target of such Additional Acquisition;
(f) existing Investments Guarantees (i) by the Company or any Subsidiary of Indebtedness of the Company or any Subsidiary that is a Guarantor, (ii) by any Subsidiary that is not otherwise permitted under this Agreement and described in Schedule 6.05 heretoa Guarantor of any Indebtedness of any Subsidiary or (iii) of any of the Obligations;
(g) Investments received Guarantees, investments, loans or advances not otherwise permitted by this Section 6.04 not in connection with excess of 15% of Consolidated Total Assets in the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;aggregate; and
(h) Permitted Acquisitions; provided the Acquisition. It is acknowledged and agreed that ifany Guarantees permitted by clauses (f) and (g) above, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the extent such Guarantee Agreement as a Guarantor constitutes Indebtedness, are subject to compliance with any applicable limitations in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons6.01.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Perrigo Finance PLC), Term Loan Credit Agreement (Perrigo Finance PLC)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Restricted Subsidiaries to, (i) purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Wholly Owned Restricted Subsidiary prior to such merger) any capital stockEquity Interest, 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 (ii) purchase or otherwise acquire (in one transaction or a series of transactions) substantially all the assets of any Person or any assets of any other Person constituting a business unit or the unit, division, product line (including rights in respect of any licensee under drug or other pharmaceutical product) or line of business of such Person, or (iii) acquire an Exclusive License of rights to a trademark license to such licensee from the Parent Borrower drug or other product line of any of its AffiliatesPerson (each, an “Investment”) except:
(a) cash and Permitted Investments;
(b) investments by Permitted Acquisitions and the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesAcquisition;
(c) loans Investments by Parent and its Restricted Subsidiaries existing on the date hereof or advances made by Parent and its Restricted Subsidiaries pursuant to legally binding written contracts in existence on the Parent Borrower todate hereof, in each case, set forth on Schedule 7.04 and Guarantees by any modification, replacement, reinvestment, renewal or extension thereof to the Parent Borrower of obligations of, extent not involving any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Subsidiaryadditional net Investment;
(d) Investments made by Parent in or to any Restricted Subsidiary and made by any Restricted Subsidiary in or to Parent or any other Restricted Subsidiary and Guarantees by Parent or any Restricted Subsidiary of obligations of any other Restricted Subsidiary; provided that (i) the amount of any Investment under this clause (d) by a Loan Party in a Restricted Subsidiary which is not a Loan Party made after the Closing Date or constituting a Guarantee of obligations of any Restricted Subsidiary that is not a Loan Party made after the Closing Date shall not exceed, together with the aggregate amount of all other Investments made pursuant to this proviso, $100,000,000 at any time outstanding (excluding any intercompany accounts payable and receivable, guarantee fees and transfer pricing arrangements), and (ii) in the case of any intercompany Indebtedness (other than Indebtedness among Subsidiaries that are not Loan Parties and, for the avoidance of doubt, any intercompany accounts payable and receivable, guarantee fees and transfer pricing arrangements), (A) each item of intercompany Indebtedness shall be evidenced by a promissory note (which shall be substantially in the form of Exhibit H hereto), (B) each promissory note evidencing intercompany Indebtedness made by a Subsidiary that is not a Loan Party to a Loan Party shall contain the subordination provisions set forth in Exhibit I and (C) each promissory note evidencing intercompany Indebtedness held by a Loan Party shall be pledged to the Collateral Agent pursuant to the applicable Collateral Documents to the extent required thereby;
(e) Guarantees constituting Indebtedness permitted by Section 6.017.01;
(ef) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) Investments made as a result of the receipt of non-cash consideration from a Disposition, of any asset in compliance with Section 7.03;
(h) Investments in the form of Swap Agreements entered into (i) to hedge or mitigate risks to which Parent or any Restricted Subsidiary has actual exposure (other than those in respect of Equity Interests of Parent or any of its Restricted Subsidiaries) or (ii) in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of Parent or any Restricted Subsidiary;
(i) payroll, travel and similar advances to directors, officers and employees of Parent, any Borrower or loans any Restricted Subsidiary that are made in the ordinary course of business;
(j) extensions of trade credit in the ordinary course of business;
(k) Investments to the extent the consideration paid therefor consists of Equity Interests (other than Disqualified Capital Stock) of Parent;
(l) Investments of any Person in existence at the time such Person becomes a Restricted Subsidiary; provided such Investment was not made in connection with or anticipation of such Person becoming a Restricted Subsidiary and any modification, replacement, renewal or extension thereof;
(m) the purchase by Parent or any Restricted Subsidiary of any call option (or similar instrument) to purchase Equity Interests (other than Disqualified Capital Stock) of Parent entered into contemporaneously and otherwise in connection with the issuance of convertible or exchangeable debt securities otherwise permitted to be issued under this Agreement; provided that (i) the aggregate consideration for such call option or options shall not exceed $75,000,000 million plus the amount of any Net Cash Proceeds received by Parent from the sale of any warrants (or similar instruments) to sell Equity Interests (other than Disqualified Capital Stock) of Parent entered into contemporaneously and otherwise in connection with the purchase of such option or options and issuance of such convertible or exchangeable debt securities and (ii) after giving effect to any such issuance of convertible or exchangeable debt securities (x) the Total Leverage Ratio shall be less than or equal to 3.0 to 1.0 and (y) the Secured Leverage Ratio shall be less than or equal to 2.25 to 1.0, in each case, as of the end of the most recently completed Test Period on a pro forma basis in accordance with Section 1.03(c);
(n) any customary upfront milestone, marketing or other funding payment in the ordinary course of business to employees of another Person in connection with obtaining a right to receive royalty or other payments in the Parent Borrower and its Subsidiariesfuture;
(fo) existing Investments not otherwise permitted under this Agreement transfers of intellectual property to Foreign Subsidiaries, the Equity Interests of which are directly owned by or on behalf of any Loan Party and described in Schedule 6.05 heretoare pledged to the Administrative Agent pursuant to the Collateral Documents (including any local law governed pledge agreement requested by the Administrative Agent);
(gp) Investments received in connection with the bona fide settlement Exclusive Licenses from a Restricted Subsidiary that is not a Loan Party to a Loan Party of any defaulted Indebtedness rights to a drug or other liability owed to the Parent Borrower pharmaceutical products, diagnostics, delivery technologies, medical devices or any Subsidiarybiotechnology businesses; provided that such drug or other pharmaceutical products, diagnostics, delivery technologies, medical devices or biotechnology businesses was not acquired by such Restricted Subsidiary in an acquisition prohibited by Section 7.03;
(hq) Investments in joint ventures (including JV Subsidiaries) and acquisitions of Equity Interests that would constitute Permitted AcquisitionsAcquisitions but for the fact that Persons in which such Equity Interests are acquired do not become Wholly Owned Subsidiaries of Parent; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 the sum of the Code aggregate amount of Federal Regulationssuch Investments, plus the aggregate consideration paid in all such acquisitions, made under this clause (q) or (ii) after the Closing Date shall not exceed $50,000,000 at any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09time outstanding;
(ir) Swap Agreements Permitted Foreign Loans;
(s) Investments consisting of Permitted Liens, Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;
(t) loans or advances to directors and employees of Parent or any Restricted Subsidiary made in the ordinary course of business; provided that the aggregate amount of such loans and advances outstanding, when aggregated with the Guarantees then outstanding under Section 7.01(k), at any time shall not entered into for speculative purposesexceed $10,000,000;
(u) any other Investment so long as the aggregate amount of all such Investments made after the Closing Date does not exceed $50,000,000 at any time outstanding;
(v) any Permitted Reorganization; and
(jw) InvestmentsParent and its Restricted Subsidiaries may make additional Investments using the Available Amount so long as the Available Amount Conditions have been met. For purposes of covenant compliance with this Section 7.04, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in addition to Investments permitted under clauses the value of such Investment or accrued and unpaid interest or dividends thereon, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of such Investment. For purposes of clause (aq), clause (u) through and clause (hw) of this Section 6.057.04, but including Investments permitted under Section 6.04(b)the aggregate consideration payable for any Investment shall be the cash amount paid on or prior to the consummation of such Investment and shall not include any purchase price adjustment, made after the date hereof Milestone Payment, royalty, earnout, contingent payment or any other deferred payment of a similar nature that may be payable in an aggregate amount not to exceed $500,000,000 in any Person or Personsconnection therewith.
Appears in 2 contracts
Samples: Credit Agreement (Jazz Pharmaceuticals PLC), Credit Agreement (Jazz Pharmaceuticals PLC)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold purchase or acquire (including pursuant to any merger with 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 Division) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or (collectively, “Investments”; provided that any loan made by the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any Restricted Subsidiary to any direct or indirect parent company of its Affiliatesthe Borrower in connection with the Amendment No. 3 Transactions shall be deemed to be a Restricted Payment but not an “Investment” for purposes of this Agreement and any Qualified Proceeds or Permitted Investments subsequently received by the Borrower or such Restricted Subsidiary on account of principal or interest on any such loan shall be deemed a contribution to the capital of the Borrower for purposes of the definition of “Available Amount”), except:
(a) Permitted Investments;Acquisitions,
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its Subsidiaries;Permitted Investments,
(c) Investments existing on the Closing Date and set forth on Schedule 6.04 and any Investments consisting of extensions, modifications or renewals of any such Investments (excluding any such extensions, modifications or renewals involving additional advances, contributions or other investments of cash or property or other increases thereof unless it is a result of the accrual or accretion of interest or OID or payment-in-kind pursuant to the terms, as of the Closing Date, of the original Investment so extended, modified or renewed),
(d) Investments by the Borrower or any Restricted Subsidiaries in Equity Interests in their respective Restricted Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Collateral Agreement (subject to the limitations referred to in the definition of “Collateral and Guarantee Requirement”) and (B) the aggregate amount of investments in Non-Loan Parties by Loan Parties (together with outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(e) and outstanding Guarantees permitted to be incurred under clause (B) to the proviso to Section 6.04(f)) shall not exceed the greater of $25,000,000 and 2.5% of Total Assets at any time outstanding (in each case determined without regard to any write-downs or write-offs),
(e) loans or advances made by the Parent Borrower to, to any Restricted Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Restricted Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Restricted Subsidiary;; provided that (A) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Collateral Agreement and (B) the amount of such loans and advances made by Loan Parties to Non-Loan Parties (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(d) and outstanding Guarantees permitted under clause (B) to the proviso to Section 6.04(f)) shall not exceed the greater of $25,000,000 and 2.5% of Total Assets at any time outstanding (in each case determined without regard to any write-downs or write-offs),
(df) Guarantees constituting Indebtedness permitted by Section 6.01;6.01 and performance guarantees in the ordinary course of business; provided that (and without limiting the foregoing) the aggregate principal amount of Indebtedness of Non-Loan Parties that is Guaranteed by any Loan Party (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(d) and outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(e)) shall not exceed the greater of $25,000,000 and 2.5% of Total Assets at any time outstanding (in each case determined without regard to any write-downs or write-offs),
(eg) receivables or other trade payables owing to the Borrower or any Restricted Subsidiary if created or acquired in the ordinary course of business consistent with past practice and payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as the Borrower or any such Restricted Subsidiary deems reasonable under the circumstances,
(h) Investments consisting of Equity Interests, obligations, securities or other property received in settlement of delinquent accounts of and disputes with customers and suppliers in the ordinary course of business and owing to the Borrower or any Restricted Subsidiary or in satisfaction of judgments,
(i) Investments by the Borrower or any Restricted Subsidiary in payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business,
(j) loans or loans advances by the Borrower or any Restricted Subsidiary to employees and other individual service providers made in the ordinary course of business to employees (including travel, entertainment and relocation expenses) of the Parent Borrower and its Subsidiaries;or any Restricted Subsidiary not exceeding $2,500,000 in the aggregate at any time outstanding (determined without regard to any write-downs or write-offs of such loans or advances),
(fk) existing Investments not otherwise in the form of Swap Agreements permitted under this Agreement and described in Schedule 6.05 hereto;by Section 6.07,
(gl) Investments of any Person existing at the time such Person becomes a Restricted Subsidiary of the Borrower or consolidates or merges, in one transaction or a series of transactions, with the 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 Restricted Subsidiary or of such consolidation or merger,
(m) Investments received in connection with the bona fide settlement dispositions of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;assets permitted by Section 6.05,
(hn) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, Investments constituting deposits described in clauses (ic) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 d) of the Code definition of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;term “Permitted Encumbrances”,
(io) Swap Agreements not entered into for speculative purposes; and
Investments in Permitted Joint Ventures (j) Investments, together with the aggregate amount of Investments in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments Permitted Real Estate Joint Ventures permitted under Section 6.04(b6.04(p), made after the date hereof ) in an aggregate amount not to exceed $500,000,000 50,000,000 plus an amount equal to any returns (including dividends, interest, distributions, returns of principal and profits on sale) actually received in cash in respect of any Person such Investments (which amount shall not exceed the amount of such Investment valued at cost at the time such Investment was made),
(p) Investments in Permitted Real Estate Joint Ventures (together with the aggregate amount of Investments in Permitted Joint Ventures permitted under Section 6.04(o)) in an amount not to exceed $50,000,000 plus an amount equal to any returns (including dividends, interest, distributions, returns of principal and profits on sale) 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),
(q) payments, loans, advances to, and investments in, Consolidated Practices in the ordinary course of business and consistent with past practice in satisfaction of their obligations under any management services agreements,
(r) Investments by the Borrower or Personsany Restricted Subsidiary (including Investments in Permitted Joint Ventures and Permitted Acquisitions) 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 the Available Amount immediately prior to the time of the making of any such Investment,
(i) Investments by the Borrower or any Restricted Subsidiary (including Investments in Permitted Joint Ventures) in an amount not to exceed the greater of $50,000,000 and 5.0% of Total Assets and (ii) other Investments; provided that (x) no Event of Default has occurred and is continuing or would result therefrom and (y) immediately after giving effect to such Investment on a Pro Forma Basis, the Total Net Leverage Ratio does not exceed 5.00:1.00,
(t) Investments, loans and advances by the Borrower or any Restricted Subsidiary to any Captive Insurance Subsidiary in an amount equal to (A) the capital required under the applicable laws or regulations of the jurisdiction in which such Captive Insurance Subsidiary is formed or determined by independent actuaries as prudent and necessary capital to operate such Captive Insurance Subsidiary plus (B) any reasonable general corporate and overhead expenses of such Captive Insurance Subsidiary,
(u) any Investment solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Borrower or Holdings (or any other direct or indirect parent company of the Borrower), and
(v) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business. For purposes of covenant compliance, the amount of any Investment outstanding at any time shall be the original cost of such Investment (without adjustment for any increases or decreases in the value of such Investments), reduced by (except in the case of any Investments made using the Available Amount pursuant to Section 6.04(r) and returns which are included in the Available Amount pursuant to the definition thereof) any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by the Borrower or a Restricted Subsidiary in respect of such Investment.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Select Medical Holdings Corp), First Lien Credit Agreement (Select Medical Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower It will not, and will not permit any of its Subsidiaries subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness Investment in or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments Investments by the Parent Borrower or a Subsidiary it in the capital stock Equity Interest of its SubsidiariesWholly-Owned Subsidiaries of the MLP, so long as the MLP and the Borrower are in compliance with Section 5.10;
(c) loans or advances made by the Parent Borrower to, MLP to any Wholly-Owned Subsidiary of the MLP and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower MLP or any other SubsidiaryWholly-Owned Subsidiary of the MLP, so long as the MLP and the Borrower are in compliance with Section 5.10;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made the Borrower’s interest in the ordinary course of business to employees of the Parent Borrower and its SubsidiariesXxxxxx-Belvieu Pipeline Company, L.L.C.;
(f) existing Investments not otherwise permitted under this Agreement the purchase or other acquisition by a Wholly-Owned Subsidiary of the MLP of the assets of another Person constituting a business unit; provided, that, both before and described after giving effect to any such Investment, no Default shall exist, including, without limitation, a Default with respect to (i) use of proceeds set forth in Schedule 6.05 heretoSection 5.08, (ii) the Consolidated Interest Coverage Ratio set forth in Section 6.11(a), or (iii) the Consolidated Debt Coverage Ratio set forth in Section 6.11(b);
(g) Investments received in connection with Joint Venture Interests and the bona fide settlement of any defaulted Indebtedness purchase or other liability owed acquisition by a Subsidiary that is not a Wholly-Owned Subsidiary of the MLP of the assets of another Person constituting a business unit; provided, that, both before and after giving effect to any such Investment, no Default shall exist, including, without limitation, a Default with respect to (i) use of proceeds set forth in Section 5.08, (ii) the Parent Borrower Consolidated Interest Coverage Ratio set forth in Section 6.11(a), or (iii) the Consolidated Debt Coverage Ratio set forth in Section 6.11(b); provided that the aggregate amount of Investments and other acquisitions made pursuant to this clause (g) (other than Investments described in Schedule 6.04) shall not exceed $100,000,000 in the aggregate at any Subsidiary;time; and
(h) Permitted Acquisitions; provided that if, as a result Guarantees of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation Sobligations not constituting Indebtedness of Wholly-X, part 210.1-02 of Title 17 Owned Subsidiaries of the Code MLP incurred in the ordinary course of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Personsbusiness.
Appears in 2 contracts
Samples: 5 Year Revolving Credit Agreement (Valero L P), 5 Year Term Credit Agreement (Valero L P)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Each of STX and the Borrower will not, and will not permit any of its Subsidiaries subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Subsidiary of the Borrower prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or (any of its Affiliatesthe foregoing, an “Investment”), except:
(a) Permitted Investments;
(b) investments by existing on the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesEffective Date and set forth on Schedule 6.04;
(c) investments by STX, the Borrower and the Subsidiaries in Equity Interests in each other (other than in any SPE Subsidiary), provided that no investment may be made pursuant to this clause (c) by a Loan Party in the Equity Interests of a Subsidiary that is not a Loan Party unless such investment is being made in the ordinary course of business of STX, the Borrower and the Subsidiaries;
(d) loans or advances (x) made by STX to the Borrower or any Subsidiary (other than any SPE Subsidiary), (y) made by the Parent Borrower to, to any Subsidiary (other than any SPE Subsidiary) and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances (z) made by any Subsidiary to, and Guarantees by any Subsidiary of obligations ofto STX, the Parent Borrower or any other Subsidiary (other than any SPE Subsidiary), provided that no loan or advance in excess of $15,000,000 in the aggregate for all such loans or advances may be made pursuant to this clause (d) by a Loan Party to a Subsidiary that is not a Loan Party unless such loan or advance is being made in the ordinary course of business of STX, the Borrower and the Subsidiaries;
(de) Guarantees constituting Indebtedness permitted by Section 6.01 and Guarantees of Permitted Obligations permitted by Section 6.01;
, provided that no Guarantee (of other than the Obligations) in excess of $15,000,000 in the aggregate for all Guarantees constituting Indebtedness may be made pursuant to this clause (e) advances or loans by any Loan Party of the Indebtedness of any Subsidiary that is not a Loan Party unless such Guarantee is being made in the ordinary course of business to employees of STX, the Parent Borrower and its the Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and described disputes with, customers and suppliers, in Schedule 6.05 heretoeach case in the ordinary course of business;
(g) Investments any investments in or loans to any other Person received in connection with the bona fide settlement of any defaulted Indebtedness or as non-cash consideration for sales, transfers, leases and other liability owed to the Parent Borrower or any Subsidiarydispositions permitted by Section 6.05;
(h) Permitted Acquisitions; provided that ifGuarantees by STX, the Borrower and the Subsidiaries of leases other than Capital Lease Obligations entered into by any Subsidiary as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09lessee;
(i) extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;
(j) 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;
(k) investments in or acquisitions of stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to STX, the Borrower or any Subsidiary or in satisfaction of judgments;
(l) investments in the form of Swap Agreements permitted under Section 6.06;
(m) investments, loans, advances, guarantees and acquisitions resulting from a foreclosure by STX, the Borrower or any Subsidiary with respect to any secured investment or other transfer of title with respect to any secured investment in default;
(n) investments, loans, advances, guarantees and acquisitions the consideration for which consists solely of shares of common stock of STX;
(o) investments arising as a result of any Permitted Receivables Financing;
(p) other Investments, provided that (i) no Default has occurred and is continuing or would result from any such Investment, (ii) in the case of any such Investment in an amount that exceeds $100,000,000, (A) STX is in compliance, on a pro forma basis after giving effect to any such Investment (after giving effect to any reduction in operating expenses permitted to be included for this purpose in the calculation set forth in the definition of the term Consolidated EBITDA), with the covenants contained in Section 6.11 and Section 6.12 recomputed as of the last day of the most recently ended fiscal quarter of STX for which financial information is available, as if such Investment (and any related incurrence or repayment of Indebtedness, with any new Indebtedness being deemed to be amortized over the applicable testing period in accordance with its terms) had occurred on the first day of each relevant period for testing such compliance; and (B) the Administrative Agent shall have received a certificate from a Financial Officer of STX that certifies compliance with clauses (p)(ii)(A) and (p)(iii), together with all relevant financial information for the Person or assets to be acquired and reasonably detailed calculations demonstrating compliance with the requirement set forth in clause (ii)(A) and (iii) both before and after giving effect to such Investment and any related Borrowing, the Liquidity Amount shall not entered into for speculative purposesbe less than $800,000,000; and
(jq) Investmentsprepayments or advances to vendors or suppliers of semiconductors in connection with any guarantee of supply by, in addition or to Investments permitted under clauses (a) through (h) fund the expansion of this Section 6.05supply capacity by, but including Investments permitted under Section 6.04(b)such vendor or supplier, made after the date hereof in an aggregate amount not to exceed $500,000,000 in 50,000,000 at any Person or Personsone time outstanding.
Appears in 2 contracts
Samples: Second Amendment and Joinder Agreement (Seagate Technology PLC), Credit Agreement (Seagate Technology PLC)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment Investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments Investments by the Parent Borrower or a Subsidiary existing on the date hereof in the capital stock stock, partnership or other ownership interests of its Subsidiaries;
(c) loans or advances Investments made by the Parent Borrower to, in any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, in the Parent Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made the redemption by Borrower of its issued and outstanding capital stock for (i) cash consideration of up to $2,000,000 in the ordinary course aggregate during the term of business this Agreement and/or (ii) the cancellation by Borrower of certain promissory notes held by Borrower representing Indebtedness owed to employees of the Parent Borrower by its current or former employees, directors and its Subsidiariesconsultants;
(f) existing Investments not otherwise permitted under this Agreement and described acquisition of assets, stock or other securities or similar interests (whether by merger, consolidation or otherwise) of any other Person in Schedule 6.05 hereto;Borrower's line of business; and
(g) Investments received in connection with the bona fide settlement of any defaulted promissory notes that represent Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that ifby employees, as a result directors and consultants of a Permitted AcquisitionBorrower, (i) a new Domestic Subsidiary shall be created which promissory notes were executed and such Domestic Subsidiary is a “Significant Subsidiary” (as defined delivered in Regulation S-X, part 210.1-02 of Title 17 consideration of the Code issuance of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) capital stock of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or PersonsBorrower.
Appears in 2 contracts
Samples: Credit Agreement (United Surgical Partners International Inc), Credit Agreement (United Surgical Partners International Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower It 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 Subsidiary prior to such merger) any capital stock, evidences of indebtedness Investment in or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments Investments by the Parent Borrower or a MLP and any Restricted Subsidiary in the capital stock Equity Interests of its Subsidiariesany Restricted Subsidiary;
(c) loans or advances made by the Parent Borrower to, MLP to any Restricted Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Restricted Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower MLP or any other Restricted Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries[Reserved];
(f) existing Investments not the purchase or other acquisition by the MLP or a Restricted Subsidiary of the assets of another Person constituting all or substantially all of the property and assets or business of another Person or assets that constitute a business unit, line of business or division of another Person, or the purchase or other acquisition by the MLP or a Restricted Subsidiary of all or substantially all of the Equity Interests in any Person, that immediately upon the consummation thereof, will be a Restricted Subsidiary (including, without limitation, as a result of a merger or consolidation otherwise permitted under this Agreement Agreement); provided that, both before and described after giving effect to any such Investment, no Default shall exist, including, without limitation, a Default with respect to use of proceeds set forth in Schedule 6.05 heretoSection 5.08, and the MLP shall be in Pro Forma Compliance;
(g) Investments received in connection Joint Venture Interests and Unrestricted Subsidiaries; provided that, both before and after giving effect to any such Investment, no Default shall exist, including, without limitation, a Default with respect to use of proceeds set forth in Section 5.08, and the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any SubsidiaryMLP shall be in Pro Forma Compliance;
(h) Investments in Swap Agreements (other than Permitted AcquisitionsSwap Agreements); provided that ifthat, as both before and after giving effect to any such Investment, no Default shall exist, including, without limitation, a result Default with respect to use of a Permitted Acquisitionproceeds set forth in Section 5.08, (i) a new Domestic Subsidiary and the MLP shall be created and such Domestic Subsidiary is a “Significant Subsidiary” in Pro Forma Compliance; provided further that the aggregate amount of Investments made pursuant to this clause (as defined h) shall not exceed $100,000,000 in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) aggregate at any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09time;
(i) Swap Agreements Guarantees of obligations (not entered into for speculative purposesconstituting Indebtedness) of Restricted Subsidiaries; and
(j) Investments, in addition the acquisition by the Borrower of any Go-Zone Bonds that are acquired by the Borrower after such Go-Zone Bonds have failed to Investments permitted under clauses be remarketed or sold pursuant to the terms of the applicable Go-Zone Bond Indenture; provided that the aggregate stated principal amount of all such Go-Zone Bonds owned by the Borrower pursuant this clause (aj) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount shall not to exceed $500,000,000 in 400,000,000 at any Person or Personstime.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower Each Loan Party will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such mergerPerson) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee (other than pursuant to the Guarantee Agreement) 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 or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliates(collectively, “Investments”), except:
(a) Permitted InvestmentsInvestments and Investments that were Permitted Investments when made;
(b) investments by Investments outstanding on the Parent Borrower or a Subsidiary Effective Date and identified in Schedule 6.04, and any renewals, amendments and replacements thereof that do not increase the capital stock amount thereof (other than in respect of its Subsidiariescapitalized interest and reasonable expenses);
(c) loans or advances indemnities made by and security deposits and surety bonds issued in the Parent Borrower to, and Guarantees by the Parent Borrower ordinary course of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Subsidiarybusiness;
(d) Guarantees constituting Indebtedness permitted by Section 6.01indemnities made in the Financing Documents;
(e) advances or loans Investments among the Loan Parties and their Wholly Owned Subsidiaries, including Investments in respect of Indebtedness permitted pursuant to Section 6.01(d) hereof;
(f) Guarantees made in the ordinary course of business business; provided that such Guarantees are not of Indebtedness for borrowed money except to employees of the Parent Borrower extent permitted pursuant to Section 6.01 and its Subsidiaries;
(f) existing Investments otherwise could not otherwise permitted under this Agreement and described in Schedule 6.05 heretothe aggregate reasonably be expected to have a Material Adverse Effect;
(g) advances, loans or extensions of credit by the Loan Parties or any of their Subsidiaries to officers, directors, employees and agents of the Loan Parties or any of their Subsidiaries (i) in the ordinary course of business for travel, entertainment, relocation or other similar expenses, (ii) in connection with such Person’s purchase of Qualified Equity Interests of MK Holdings (or any direct or indirect parent thereof) (provided that the amount of such loans and advances made in cash to such Person shall be contributed to MK Holdings in cash as common equity or Qualified Equity Interests and shall not exceed $10,000,000 in the aggregate at any time outstanding), (iii) in compliance with all applicable laws not to exceed $2,000,000 in the aggregate at any one time outstanding and (iv) relating to indemnification or reimbursement of such officers, directors, employees and agents in respect of liabilities relating to their service in such capacities;
(h) Investments received in connection with the bona fide bankruptcy or reorganization of suppliers and customers or in settlement of any defaulted Indebtedness or delinquent obligations of, and other liability owed to disputes with, customers and supplier arising in the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result ordinary course of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09business;
(i) Swap Agreements not entered into for speculative purposes; andaccounts, chattel paper and notes receivable arising from the sale or lease of goods or the performance of services in the ordinary course of business;
(j) InvestmentsCapital Expenditures and Liens not prohibited by this Agreement;
(k) Investments constituting Derivative Obligations permitted by Section 6.01 hereof;
(l) promissory notes and other non-cash consideration that is permitted to be received in connection with dispositions permitted by Section 6.03;
(m) Permitted Acquisitions and existing Investments of a Person or business acquired in such Permitted Acquisition so long as such Investment was not made in contemplation of such Acquisition;
(n) Investments (which, if constituting an Acquisition, shall satisfy all requirements of a Permitted Acquisition) to the extent that payment for such Investments is made solely with Qualified Equity Interests of MK Holdings (or any direct or indirect parent thereof) or the IPO Entity;
(o) Investments held by a Subsidiary acquired after the Effective Date or of a Person merged into a Loan Party or any Subsidiary of a Loan Party, in addition either case, in a transaction permitted by Section 6.03 after the Effective Date to the extent such Investments permitted under clauses 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;
(ap) through other Investments (hwhich, if constituting an Acquisition, shall satisfy all requirements of a Permitted Acquisition) in an aggregate amount at any time outstanding not to exceed $10,000,000 (the amount of this Section 6.05any such Investment being deemed to be the cost of such Investment at the time made or acquired, but including giving effect to any deferred purchase price component);
(q) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, time other Investments permitted under Section 6.04(b)(which, made after the date hereof if constituting an Acquisition, shall satisfy all requirements of a Permitted Acquisition) in an aggregate amount not to exceed $500,000,000 the Available Amount at such time;
(r) loans and advances to any direct or indirect parent of MK Holdings in lieu of, and not in excess of the amount (after giving effect to any Person other loans, advances or PersonsRestricted Payments in respect thereof), Restricted Payments to the extent permitted to be made to such direct or indirect parent in accordance with Section 6.06(d), (e) or (f); and
(s) Investments for which no consideration is provided by any Loan Party or any Subsidiary. For purposes of compliance with this Section 6.04, the amount of any Investment shall be the amount initially invested, without adjustment for subsequent increases or decreases in the value of such Investment, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of such Investment; provided, that the amount of any Acquisition shall be determined in accordance with the parameters established in the definition of Permitted Acquisition.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Restricted Subsidiaries to, (i) purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Wholly Owned Restricted Subsidiary prior to such merger) any capital stockEquity Interest, 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 (ii) purchase or otherwise acquire (in one transaction or a series of transactions) substantially all the assets of any Person or any assets of any other Person constituting a business unit or the unit, division, product line (including rights in respect of any licensee under drug or other pharmaceutical product) or line of business of such Person, or (iii) acquire an Exclusive License of rights to a trademark license to such licensee from the Parent Borrower drug or other product line of any of its AffiliatesPerson (each, an “Investment”) except:
(a) cash and Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesPermitted Acquisitions;
(c) loans Investments by Parent and its Restricted Subsidiaries existing on the Amendment No. 2 Effective Date or advances made by Parent and its Restricted Subsidiaries pursuant to legally binding written contracts in existence on the Parent Borrower toAmendment No. 2 Effective Date, in each case, set forth on Schedule 7.04 and Guarantees by any modification, replacement, reinvestment, renewal or extension thereof to the Parent Borrower of obligations of, extent not involving any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Subsidiaryadditional net Investment;
(d) Investments made by Parent in or to any Restricted Subsidiary and made by any Restricted Subsidiary in or to Parent or any other Restricted Subsidiary and Guarantees by Parent or any Restricted Subsidiary of obligations of any other Restricted Subsidiary; provided that (i) the amount of any Investment under this clause (d) by a Loan Party in a Restricted Subsidiary which is not a Loan Party made after the Closing Date or constituting a Guarantee of obligations of any Restricted Subsidiary that is not a Loan Party made after the Closing Date shall not exceed, together with the aggregate amount of all other Investments made pursuant to this proviso, $100,000,000 at any time outstanding (excluding any intercompany accounts payable and receivable, guarantee fees and transfer pricing arrangements), and (ii) in the case of any intercompany Indebtedness (other than Indebtedness among Subsidiaries that are not Loan Parties and, for the avoidance of doubt, any intercompany accounts payable and receivable, guarantee fees and transfer pricing arrangements), (A) to the extent such intercompany Indebtedness is in an aggregate principal amount exceeding $10,000,000, such intercompany Indebtedness shall be evidenced by a promissory note (which shall be substantially in the form of Exhibit H hereto or such other form as is reasonably acceptable to the Administrative Agent), (B) each promissory note evidencing intercompany Indebtedness owed by any Loan Party to a Subsidiary that is not a Loan Party shall contain the subordination provisions set forth in Exhibit I and (C) such Indebtedness and each promissory note evidencing such intercompany Indebtedness held by a Loan Party shall be pledged to the Collateral Agent pursuant to the applicable Collateral Documents to the extent required thereby;
(e) Guarantees constituting Indebtedness permitted by Section 6.017.01;
(ef) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) Investments made as a result of the receipt of non-cash consideration from a Disposition, of any asset in compliance with Section 7.03;
(h) Investments in the form of Swap Agreements entered into (i) to hedge or mitigate risks to which Parent or any Restricted Subsidiary has actual exposure (other than those in respect of Equity Interests of Parent or any of its Restricted Subsidiaries) or (ii) in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of Parent or any Restricted Subsidiary;
(i) payroll, travel and similar advances to directors, officers and employees of Parent, any Borrower or loans any Restricted Subsidiary that are made in the ordinary course of business;
(j) extensions of trade credit in the ordinary course of business;
(k) Investments to the extent the consideration paid therefor consists of Equity Interests (other than Disqualified Capital Stock) of Parent;
(l) Investments of any Person in existence at the time such Person becomes a Restricted Subsidiary; provided such Investment was not made in connection with or anticipation of such Person becoming a Restricted Subsidiary and any modification, replacement, renewal or extension thereof;
(m) the purchase by Parent or any Restricted Subsidiary of any call option (or similar instrument) to purchase Equity Interests (other than Disqualified Capital Stock) of Parent entered into contemporaneously and otherwise in connection with the issuance of convertible or exchangeable debt securities otherwise permitted to be issued under this Agreement; provided that (i) the aggregate consideration for such call option or options shall not exceed $75,000,000 million plus the amount of any Net Cash Proceeds received by Parent from the sale of any warrants (or similar instruments) to sell Equity Interests (other than Disqualified Capital Stock) of Parent entered into contemporaneously and otherwise in connection with the purchase of such option or options and issuance of such convertible or exchangeable debt securities and (ii) after giving effect to any such issuance of convertible or exchangeable debt securities (x) the Total Leverage Ratio shall be less than or equal to 3.00 to 1.00 and (y) the Secured Leverage Ratio shall be less than or equal to 2.25 to 1.00, in each case, as of the end of the most recently completed Test Period on a pro forma basis in accordance with Section 1.03(c) (and, if applicable, Section 1.03(e));
(n) any customary upfront milestone, marketing or other funding payment in the ordinary course of business to employees of another Person in connection with obtaining a right to receive royalty or other payments in the Parent Borrower and its Subsidiariesfuture;
(fo) existing Investments not otherwise permitted under this Agreement transfers of intellectual property to Foreign Subsidiaries, the Equity Interests of which are directly owned by or on behalf of any Loan Party and described in Schedule 6.05 heretoare pledged to the Administrative Agent pursuant to the Collateral Documents (including any local law governed pledge agreement requested by the Administrative Agent);
(gp) Investments received in connection with the bona fide settlement Exclusive Licenses from a Restricted Subsidiary that is not a Loan Party to a Loan Party of any defaulted Indebtedness rights to a drug or other liability owed to the Parent Borrower pharmaceutical products, diagnostics, delivery technologies, medical devices or any Subsidiarybiotechnology businesses; provided that such drug or other pharmaceutical products, diagnostics, delivery technologies, medical devices or biotechnology businesses was not acquired by such Restricted Subsidiary in an acquisition prohibited by Section 7.03;
(hq) Investments in joint ventures (including JV Subsidiaries) and acquisitions of Equity Interests that would constitute Permitted AcquisitionsAcquisitions but for the fact that Persons in which such Equity Interests are acquired do not become Wholly Owned Subsidiaries of Parent; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 the sum of the Code aggregate amount of Federal Regulationssuch Investments, plus the aggregate consideration paid in all such acquisitions, made under this clause (q) or (ii) after the Amendment No. 2 Effective Date shall not exceed $50,000,000 at any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09time outstanding;
(ir) Swap Agreements Permitted Foreign Loans;
(s) Investments consisting of Permitted Liens, Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;
(t) loans or advances to directors and employees of Parent or any Restricted Subsidiary made in the ordinary course of business; provided that the aggregate amount of such loans and advances outstanding, when aggregated with the Guarantees then outstanding under Section 7.01(k), at any time shall not entered into for speculative purposesexceed $10,000,000;
(u) any other Investment so long as the aggregate amount of all such Investments made after the Amendment No. 2 Effective Date does not exceed the greater of $500,000,000 and 10.0% of Consolidated Total Assets at any time outstanding;
(v) any Permitted Reorganization;
(w) Parent and its Restricted Subsidiaries may make additional Investments using the Available Amount so long as the Available Amount Conditions have been met; and
(jx) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons.by Jazz Financing Lux S.à x.
Appears in 1 contract
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 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 or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments Investments by the Parent Borrower or a Subsidiary existing on the date hereof in the capital stock of its SubsidiariesRestricted Subsidiaries and Investments by the Borrower existing on the date hereof described in Part B of Schedule 3.14;
(c) loans or advances prior to the Security Termination Date, Investments made by the Parent Borrower to, in any Restricted Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Restricted Subsidiary to, and Guarantees by any Subsidiary of obligations of, in the Parent Borrower or any other Restricted Subsidiary;
(d) on and after the Security Termination Date, (i) Investments by the Borrower or any of the Subsidiary Guarantors in any Person, that, prior to such Investment, is a Restricted Subsidiary that is not a Subsidiary Guarantor (including Guarantee Obligations with respect to obligations of any such Restricted Subsidiary, loans made to any such Restricted Subsidiary and Investments resulting from mergers with or sales of assets to any such Restricted Subsidiary) in an aggregate amount valued at the fair market value of such Investment at the time such Investment is made not to exceed at any one time the sum of (i) an amount equal to 20% of Consolidated Total Assets plus (ii) an amount equal to any repayments, interest, returns, profits, distributions, income or similar amounts actually received in cash in respect of such Investment (which amount shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made);
(e) On and after the Security Termination Date, Investments by a Restricted Subsidiary that is not a Subsidiary Guarantor in the Borrower or any other Restricted Subsidiary;
(f) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with resulting from the bona fide settlement sale or transfer of any defaulted Indebtedness or other liability owed Accounts Receivable pursuant to the Parent Borrower or any Subsidiary;a transaction permitted by Section 6.14; and
(h) Permitted Acquisitions; provided that ifother Investments, so long as immediately prior to the making of such Investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and after giving effect to the making of such Investment, the Borrower is in compliance with Section 6.12 (the determination of such compliance to be calculated on a pro forma basis, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 at the end of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party fiscal quarter most recently ended prior to the Guarantee Agreement as a Guarantor date of the making of such Investment for which financial statements of the Borrower and its Restricted Subsidiaries are available, under the assumption that such Investment and any other Investments consummated during the twelve-month period ending on such date shall have occurred, and any Indebtedness in accordance with Section 5.09;connection therewith shall have been incurred, at the beginning of the applicable period, and under the assumption that interest for such period had been equal to the actual weighted average interest rate in effect for the Loans hereunder on the date of such Investment); provided, that:
(i) Swap Agreements to the extent that such Investment constitutes an Acquisition by the Borrower or any Restricted Subsidiary, (A) such Investment is effected in such manner that, if effected by purchase of assets, the acquired business, and the related assets, are owned either by the Borrower or a Restricted Subsidiary or, if effected by merger or consolidation involving the Borrower, the Borrower is the continuing or surviving entity or, if effected by merger or consolidation involving a Restricted Subsidiary, the continuing or surviving entity is a Restricted Subsidiary, or, if effected by purchase of stock or partner, member or other ownership interests, the acquired entity becomes a Restricted Subsidiary and (B) in the event that the amount of expenditures in respect of such Investment exceeds $100,000,000, the Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer showing calculations in reasonable detail to demonstrate pro forma compliance with Section 6.12 and certifying that prior to the making of such Investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(ii) to the extent such Investment is made by the Borrower or any Restricted Subsidiary in an Unrestricted Subsidiary, (A) such Investment shall have been made in cash or with the proceeds of the issuance of additional equity capital, (B) the aggregate amount of any such Investment (herein, the “current Investment”) taken together with all other Investments made pursuant to this Section 6.04(h)(ii) after the date hereof and prior to the date of the current Investment does not entered into exceed 3% of Consolidated Total Assets determined as at the end of the fiscal quarter most recently ended prior to the date of the current Investment for speculative purposeswhich financial statements of the Borrower and its Restricted Subsidiaries are available; and (C) in the event that the current Investment exceeds $100,000,000, the Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer showing calculations in reasonable detail to demonstrate pro forma compliance with Section 6.12 and certifying that prior to the making of such Investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; provided, however, that the aggregate amount of such current Investments permitted under this Section 6.04(h)(ii) shall not be limited if after the current Investment is made, the aggregate unutilized Commitments is at least $300,000,000; and
(jiii) Investmentsto the extent that such Investment is made by the Borrower or any Restricted Subsidiary in any Person (other than a Subsidiary), including, a Joint Venture, (A) such Investment shall be made in addition a Person that is principally engaged in a business that the Borrower and its Restricted Subsidiaries are permitted by Section 6.03(b) to be engaged in, (B) the aggregate amount of any such Investment (herein, the “current Investment”) taken together with all other Investments permitted under clauses (a) through (h) of made pursuant to this Section 6.05, but including Investments permitted under Section 6.04(b), made 6.04(h)(iii) after the date hereof and prior to the date of the current Investment does not exceed 15% of Consolidated Total Assets determined as at the end of the fiscal quarter most recently ended prior to the date of the current Investment for which financial statements of the Borrower and its Restricted Subsidiaries are available and (C) in an aggregate amount not the event that the current Investment exceeds $100,000,000, the Borrower shall have delivered to exceed $500,000,000 the Administrative Agent a certificate of a Financial Officer showing calculations in any Person reasonable detail to demonstrate pro forma compliance with Section 6.12 and certifying that prior to the making of such Investment and after giving effect thereto, no Default or PersonsEvent of Default shall have occurred and be continuing.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower and the Company will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or amalgamation with any Person that was not a wholly owned Subsidiary prior to such mergermerger or amalgamation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee 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 or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Parent Parent, the Company, any Domestic Subsidiary or any Subsidiary Guarantor in the Parent, the Borrower or a any such Domestic Subsidiary or Subsidiary Guarantor;
(c) additional purchases of or investments by the Parent, the Company or any Subsidiary in the capital stock of its Subsidiaries;
(c) loans , including Foreign Subsidiaries, joint ventures or advances made by the Parent Borrower tocapital stock, and Guarantees by the Parent Borrower assets, obligations or other securities of obligations of, any Subsidiaryor interests in other Persons, and loans and advances by the Parent, the Company, any Credit Party or advances made by any Subsidiary toForeign Credit Party to or in favor of, and Guarantees guarantees by the Parent, the Company or any Subsidiary of the obligations (including, without limitation, Indebtedness, obligations under Hedge Agreements and credit card and related obligations) of, Foreign Subsidiaries, in an amount in the Parent Borrower or aggregate at any other Subsidiarytime outstanding which does not exceed 30% of Consolidated Tangible Assets;
(d) Guarantees constituting Guarantee Obligations or Indebtedness of any Credit Party or Foreign Credit Party permitted by Section 6.017.01, Guarantee Obligations of any Credit Party guaranteeing the obligations of any Credit Party under a Hedge Agreement permitted by Section 7.05, Guarantees of Indebtedness of Foreign Subsidiaries permitted by Section 7.01(h), Guarantee Obligations of the Company pursuant to Article Article X of the Revolving Facility and Guarantee Obligations of any Credit Party or Foreign Credit Party under any of the “Loan Documents” (as defined in the Revolving Facility);
(e) loans and advances to officers and directors of any Credit Party or Foreign Credit Party (or employees thereof provided such loans made and advances are approved by an officer of a Credit Party or a Foreign Credit Party) for travel, entertainment and relocation expenses in the ordinary course of business to employees of the Parent Borrower and its Subsidiariesin an aggregate principal amount outstanding at any time that shall not exceed $1,000,000;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 heretoPermitted Acquisitions;
(g) Investments received in connection with the bona fide settlement investments of any defaulted Indebtedness or other liability owed funds intended to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof fund deferred compensation liabilities in an aggregate amount not to exceed $500,000,000 in 100,000,000 at any Person time outstanding, provided that such investments are made pursuant to the Investment Policy and continue at all times to be assets of the Parent, the Company, another Credit Party or Personsa Foreign Credit Party subject to the claims of its general creditors; and
(h) guarantees by the Parent and the Company or any Subsidiary of the rental obligations of Foreign Subsidiaries to the extent such rental obligations do not constitute Indebtedness.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactionstransactions (including pursuant to any merger)) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Parent Borrower or a Subsidiary date hereof and set forth in the capital stock of its SubsidiariesSchedule 7.4;
(c) loans or advances investments made (i) by the Parent Borrower toin the equity securities of any wholly-owned Domestic Subsidiary, and Guarantees (ii) by any wholly-owned Domestic Subsidiary in the equity securities of any other wholly-owned Domestic Subsidiary, (iii) by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any Domestic Subsidiary in the equity securities of any wholly-owned Foreign Subsidiary provided that the aggregate amount of such investments shall not exceed $5,000,000, and (iv) by any wholly-owned Foreign Subsidiary in the equity securities of any other wholly-owned Subsidiary;
(d) Guarantees constituting loans or advances made (i) by the Borrower to any wholly-owned Domestic Subsidiary, (ii) by any wholly-owned Domestic Subsidiary to the Borrower or any wholly-owned Domestic Subsidiary, (iii) by any wholly-owned Foreign Subsidiary to another wholly-owned Foreign Subsidiary, and (iv) by the Borrower or any Subsidiary Guarantor to any Foreign Subsidiary; provided that (A) such loans or advances shall be repayable on -------- demand, (B) at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (C) the outstanding principal amount of loans and advances described in clause (iv) shall not exceed $20,000,000 outstanding at any time, (D) at such time as the aggregate amount of loans and advances described in clause (iv) shall exceed $10,000,000, demand promissory notes evidencing all loans and advances described in clause (iv) shall be pledged as collateral to the Administrative Agent pursuant to documentation in form and substance satisfactory to the Administrative Agent and (E) the Borrower shall not permit any Subsidiary that is an Investment Company within the meaning of the 1940 Act or a Person deemed to be an "investment company" to incur Indebtedness permitted by Section 6.01described in this subsection (d) as a result of the Borrower or any other Subsidiary making an investment in such Subsidiary with the proceeds of Loans or Letters of Credit;
(e) advances acquisitions made by the Borrower from any Domestic Subsidiary and made by any Domestic Subsidiary from the Borrower or any other Domestic Subsidiary;
(f) investments consisting of loans to employees of the Borrower or any of the Subsidiaries made in the ordinary course of business business, provided that at the time of such loans and immediately after giving effect thereto no Default shall have occurred and be continuing, provided further that no such loans shall be made to employees any director or executive officer of (i) the Parent Borrower and its Subsidiaries;
or (fii) existing Investments not otherwise permitted under this Agreement and described any Subsidiary, in Schedule 6.05 heretoeach case to the extent it will be a violation of applicable law;
(g) Investments received investments consisting of minority interests in connection with Persons substantially the bona fide settlement same or a related business to that of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof Subsidiaries in an aggregate amount not to exceed $500,000,000 20,000,000, provided that at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing;
(h) investments in shares of an Investment Company for which a Subsidiary is a principal underwriter named in such Investment Company's registration statement under the 1940 Act, provided that (i) such shares are acquired by such Subsidiary prior to the public offering of such Investment Company's shares, (ii) such shares are acquired by such Subsidiary solely for purposes of enabling such Investment Company to satisfy the net worth requirement of Section 14(a)(1) of the 1940 Act, and (iii) the amount paid for such shares is limited to the amount necessary to enable such Investment Company to satisfy the net worth requirement of Section 14(a)(1) of the 1940 Act plus an additional $20,000,000 in the aggregate for all such investments, it being understood that nothing herein shall require the sale of any such shares;
(i) investments in shares of open end management Investment Companies, provided that after giving effect to any such investment, the consideration paid for such shares, when aggregated with the consideration paid for all other such shares then held by the Borrower and the Subsidiaries, shall not exceed 10% of the value of Consolidated Total Assets as at such time of such investment;
(j) in addition to investments permitted by subsection (c) above, capital contributions by the Borrower or any Subsidiary thereof to Exempt Subsidiaries (other than a Subsidiary of the Borrower that is an Exempt Subsidiary solely because of the applicability of clause (iii) of the definition of "Exempt Subsidiary"), provided that (i) at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, and (ii) the amount of any such investment shall not exceed the amount necessary to meet the net capital requirements applicable to such Exempt Subsidiaries;
(k) acquisitions by the Borrower or any Subsidiary of rights under a contract or group of related contracts with a customer that had previously been a party to a similar contract or group of contracts with another Person with respect to which the Borrower or Personssuch Subsidiary has agreed to pay a fee to such Person upon the successful negotiation, execution and delivery of a replacement contract or group of contracts with such customer within a specified period of time provided, that (i) at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (ii) the Total Leverage Ratio on a pro forma basis for the period of four consecutive quarters immediately succeeding the date on which such rights are acquired satisfies the applicable ratio set forth in Section 7.12(a) and (iii) the Administrative Agent and the Lenders shall have received a certificate (in form and substance satisfactory to the Administrative Agent) of a Financial Officer of the Borrower to the foregoing effect, setting forth calculations in reasonable detail; and
(l) in addition to the acquisition of rights described in subsection (k) above, other investments, loans, advances, Guarantees and acquisitions, provided that (i) at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing and (ii) in the case of an acquisition financed in whole or in part with the proceeds of Loans, the conditions set forth in Section 5.2 shall have been satisfied.
Appears in 1 contract
Samples: Credit Agreement (Bisys Group Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, 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 make or permit to exist any Guarantees of any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactionstransactions (including pursuant to any merger)) any assets of any other Person constituting a business unit unit, or the rights of purchase or otherwise enter into or become party to any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesderivative transaction, except:
(a) Permitted Investments;
(b) investments by existing on the Parent Borrower or a Subsidiary Effective Date and set forth in the capital stock of its SubsidiariesSchedules 4.11 and 7.4;
(c) investments made by the Borrower in the Equity Interests of any Subsidiary Guarantor and made by any Subsidiary Guarantor in the Equity Interests of any other Subsidiary Guarantor;
(d) loans or advances made by (i) the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by to any Subsidiary to, and Guarantees by or (ii) any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by , in each case subject to the limitations set forth in Section 6.017.1(a)(iv);
(e) advances acquisitions made by the Borrower from any Subsidiary Guarantor and made by any Subsidiary Guarantor from the Borrower or loans made in the ordinary course of business to employees of the Parent Borrower and its Subsidiariesany other Subsidiary Guarantor;
(f) existing Investments not otherwise Guarantees permitted under this Agreement and described in Schedule 6.05 heretoby Section 7.1(a);
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any SubsidiaryHedging Agreements permitted by Section 7.7;
(h) Permitted Acquisitions; provided that if, as a result investments by the Borrower in the Equity Interests of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation SVPD to the extent necessary to meet the net capital requirements with respect to VPD under Rule 15c3-X, part 210.1-02 of Title 17 1 of the Code Securities Exchange Act of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;1934; and
(i) Swap Agreements other acquisitions and investments made by the Borrower or any Subsidiary Guarantor on and subject to the following terms and conditions:
(i) immediately before and after giving effect thereto, no Default shall have occurred and be continuing;
(ii) each such acquisition or investment, as the case may be, and all transactions related thereto shall be consummated in accordance with all applicable laws, ordinances, rules, regulations and requirements of all Governmental Authorities;
(iii) for each such acquisition for which the value of the total consideration paid by the Borrower or any Subsidiary (whether in cash or otherwise) is greater than or equal to $20,000,000, the Borrower shall deliver to the Administrative Agent within five (5) Business Days following the consummation of such acquisition, (1) a notice of acquisition which shall set forth pro forma compliance with all covenants under the Loan Documents, and (2) true and complete copies of each acquisition document together with all schedules thereto, each executed by all of the parties thereto;
(iv) as soon as possible but in any event within the time periods set forth in the applicable provisions of Section 6.12, the Borrower shall have complied with the provisions of Sections 6.12 and 6.13, if applicable, with respect to each such acquisition or investment, as the case may be;
(v) if such investment consists of the investment of seed capital in a newly created Virtus Fund, immediately after giving effect thereto, the aggregate cost of all such investments made after September 1, 2012 less the aggregate cash returns of all such investments received after September 1, 2012 shall not entered into for speculative purposesexceed 25% of Borrower Group Net Worth; and
(jvi) Investmentsif such investment is in a Joint Venture, immediately after giving effect to each such investment (the “Test Time”), (x) the aggregate cost of all such investments made during each Calculation Period in addition to Investments permitted under clauses each Person that, as of such Test Time, would be a Joint Venture would not exceed 25% of Borrower Group Net Worth, and (ay) through (h) the aggregate cost of all such investments in each Person that, as of such Test Time, would be a Joint Venture would not exceed 50% of Borrower Group Net Worth, provided further that in determining the cost, for purposes of this Section 6.05, but including Investments permitted under Section 6.04(bclause (vi), made after of an investment in a Joint Venture that was formerly a Subsidiary, the date hereof cost shall be deemed to be the book value of such Joint Venture as set forth on the balance sheet of the Borrower Group on a consolidated basis in an aggregate amount not to exceed $500,000,000 in any Person or Personsaccordance with GAAP.
Appears in 1 contract
Samples: Credit Agreement (Virtus Investment Partners, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchasePurchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly Owned Subsidiary prior to such merger) any capital stockEquity Interest, 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, make or permit any capital contribution to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or all or a substantial part of the rights of any licensee under a trademark license business of, such Person (the foregoing is collectively referred to such licensee from as “Investments”), except that the Parent Borrower or any of its Affiliates, exceptfollowing shall be permitted:
(a) Permitted InvestmentsInvestments existing on the Effective Date and identified on Schedule 6.04;
(b) investments by Investments in Eligible Investments; provided that such Investments shall be made solely for investment purposes for the Parent investment portfolio of the Borrower or a any Subsidiary in accordance with the capital stock Investment Policy of its Subsidiariesthe Borrower and in the ordinary course of business;
(c) loans or advances to officers, directors and employees of the Borrower and any Subsidiaries of the Borrower in an aggregate amount not to exceed $1,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;
(i) Investments by the Borrower in any Wholly Owned Domestic Subsidiary (other than Investments made by the Parent Borrower tofor the purposes set forth in Section 6.04(k)), and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made (ii) Investments by any Subsidiary toin any Wholly Owned Domestic Subsidiary, and Guarantees (iii) Investments by any Foreign Subsidiary of obligations of, the Parent Borrower or in any other SubsidiaryForeign Subsidiary and (iv) Investments by National General Management Corp. in any Subsidiary in the ordinary course of business;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise Guarantees by the Borrower of Capital Lease Obligations of any Subsidiary permitted under this Agreement and described in Schedule 6.05 heretoby Section 6.01;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiarymergers and acquisitions permitted by Section 6.03;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Swap Obligations permitted by Section 5.096.06;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons.Permitted Acquisitions;
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock Equity Interests of its SubsidiariesSubsidiaries and, subject to limitations in Section 6.06, any repurchase of the Equity Interests of the Borrower;
(c) loans or advances made by the Parent Borrower to, to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary;; and
(d) Guarantees Acquisitions meeting the following requirements or otherwise approved by the Required Lenders (each such Acquisition constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a “Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;”):
(i) Swap Agreements not entered into for speculative purposesas of the date of the consummation of such Acquisition, no Default shall have occurred and be continuing or would result from such Acquisition, and the representation and warranty contained in Section 5.08 shall be true both before and after giving effect to such Acquisition;
(ii) such Acquisition is consummated on a non-hostile basis pursuant to a negotiated acquisition agreement approved by the board of directors or other applicable governing body of the seller or entity to be acquired, and no material challenge to such Acquisition (excluding the exercise of appraisal rights) shall be pending or threatened by any shareholder or director of the seller or entity to be acquired;
(iii) the business to be acquired in such Acquisition is similar or related to one or more of the lines of business in which the Borrower and its Subsidiaries are engaged on the Effective Date;
(iv) as of the date of the consummation of such Acquisition, all material approvals required in connection therewith shall have been obtained; and
(jv) Investments, that do not exceed in addition to Investments permitted under clauses the aggregate $50,000,000.00 in cash and/or non-cash consideration in any twelve (a12) through (h) month period or $125,000,000.00 in cash consideration or $200,000,000.00 in cash and/or non-cash consideration during the term of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or PersonsAgreement.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Restricted Subsidiaries to, (i) purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Wholly Owned Restricted Subsidiary prior to such merger) any capital stockEquity Interest, 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 (ii) purchase or otherwise acquire (in one transaction or a series of transactions) substantially all the assets of any Person or any assets of any other Person constituting a business unit or the unit, division, product line (including rights in respect of any licensee under drug or other pharmaceutical product) or line of business of such Person, or (iii) acquire an Exclusive License of rights to a trademark license to such licensee from the Parent Borrower drug or other product line of any of its AffiliatesPerson (each, an “Investment”) except:
(a) cash and Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesPermitted Acquisitions;
(c) loans Investments by Parent and its Restricted Subsidiaries existing on the ClosingAmendment No. 2 Effective Date or advances made by Parent and its Restricted Subsidiaries pursuant to legally binding written contracts in existence on the Parent Borrower toClosingAmendment No. 2 Effective Date, in each case, set forth on Schedule 7.04 and Guarantees by any modification, replacement, reinvestment, renewal or extension thereof to the Parent Borrower of obligations of, extent not involving any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Subsidiaryadditional net Investment;
(d) Investments made by Parent in or to any Restricted Subsidiary and made by any Restricted Subsidiary in or to Parent or any other Restricted Subsidiary and Guarantees by Parent or any Restricted Subsidiary of obligations of any other Restricted Subsidiary; provided that (i) the amount of any Investment under this clause (d) by a Loan Party in a Restricted Subsidiary which is not a Loan Party made after the Closing Date or constituting a Guarantee of obligations of any Restricted Subsidiary that is not a Loan Party made after the Closing Date shall not exceed, together with the aggregate amount of all other Investments made pursuant to this proviso, $100,000,000 at any time outstanding (excluding any intercompany accounts payable and receivable, guarantee fees and transfer pricing arrangements), and (ii) in the case of any intercompany Indebtedness (other than Indebtedness among Subsidiaries that are not Loan Parties and, for the avoidance of doubt, any intercompany accounts payable and receivable, guarantee fees and transfer pricing arrangements), (A) to the extent such intercompany Indebtedness is in an aggregate principal amount exceeding $10,000,000, such intercompany Indebtedness shall be evidenced by a promissory note (which shall be substantially in the form of Exhibit H hereto or such other form as is reasonably acceptable to the Administrative Agent), (B) each promissory note evidencing intercompany Indebtedness owed by any Loan Party to a Subsidiary that is not a Loan Party shall contain the subordination provisions set forth in Exhibit I and (C) such Indebtedness and each promissory note evidencing such intercompany Indebtedness held by a Loan Party shall be pledged to the Collateral Agent pursuant to the applicable Collateral Documents to the extent required thereby;
(e) Guarantees constituting Indebtedness permitted by Section 6.017.01;
(ef) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) Investments made as a result of the receipt of non-cash consideration from a Disposition, of any asset in compliance with Section 7.03;
(h) Investments in the form of Swap Agreements entered into (i) to hedge or mitigate risks to which Parent or any Restricted Subsidiary has actual exposure (other than those in respect -144- of Equity Interests of Parent or any of its Restricted Subsidiaries) or (ii) in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of Parent or any Restricted Subsidiary;
(i) payroll, travel and similar advances to directors, officers and employees of Parent, any Borrower or loans any Restricted Subsidiary that are made in the ordinary course of business;
(j) extensions of trade credit in the ordinary course of business;
(k) Investments to the extent the consideration paid therefor consists of Equity Interests (other than Disqualified Capital Stock) of Parent;
(l) Investments of any Person in existence at the time such Person becomes a Restricted Subsidiary; provided such Investment was not made in connection with or anticipation of such Person becoming a Restricted Subsidiary and any modification, replacement, renewal or extension thereof;
(m) the purchase by Parent or any Restricted Subsidiary of any call option (or similar instrument) to purchase Equity Interests (other than Disqualified Capital Stock) of Parent entered into contemporaneously and otherwise in connection with the issuance of convertible or exchangeable debt securities otherwise permitted to be issued under this Agreement; provided that (i) the aggregate consideration for such call option or options shall not exceed $75,000,000 million plus the amount of any Net Cash Proceeds received by Parent from the sale of any warrants (or similar instruments) to sell Equity Interests (other than Disqualified Capital Stock) of Parent entered into contemporaneously and otherwise in connection with the purchase of such option or options and issuance of such convertible or exchangeable debt securities and (ii) after giving effect to any such issuance of convertible or exchangeable debt securities (x) the Total Leverage Ratio shall be less than or equal to 3.00 to 1.00 and (y) the Secured Leverage Ratio shall be less than or equal to 2.25 to 1.00, in each case, as of the end of the most recently completed Test Period on a pro forma basis in accordance with Section 1.03(c) (and, if applicable, Section 1.03(e));
(n) any customary upfront milestone, marketing or other funding payment in the ordinary course of business to employees of another Person in connection with obtaining a right to receive royalty or other payments in the Parent Borrower and its Subsidiariesfuture;
(fo) existing Investments not otherwise permitted under this Agreement transfers of intellectual property to Foreign Subsidiaries, the Equity Interests of which are directly owned by or on behalf of any Loan Party and described in Schedule 6.05 heretoare pledged to the Administrative Agent pursuant to the Collateral Documents (including any local law governed pledge agreement requested by the Administrative Agent);
(gp) Investments received in connection with the bona fide settlement Exclusive Licenses from a Restricted Subsidiary that is not a Loan Party to a Loan Party of any defaulted Indebtedness rights to a drug or other liability owed to the Parent Borrower pharmaceutical products, diagnostics, delivery technologies, medical devices or any Subsidiarybiotechnology businesses; provided that such drug or other pharmaceutical products, diagnostics, delivery technologies, medical devices or biotechnology businesses was not acquired by such Restricted Subsidiary in an acquisition prohibited by Section 7.03;
(hq) Investments in joint ventures (including JV Subsidiaries) and acquisitions of Equity Interests that would constitute Permitted AcquisitionsAcquisitions but for the fact that Persons in which such Equity Interests are acquired do not become Wholly Owned Subsidiaries of Parent; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 the sum of the Code aggregate amount of Federal Regulationssuch Investments, plus the aggregate consideration paid in all such acquisitions, made under this clause (q) or (ii) after the ClosingAmendment No. 2 Effective Date shall not exceed $50,000,000 at any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09time outstanding;
(ir) Swap Agreements Permitted Foreign Loans;
(s) Investments consisting of Permitted Liens, Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;
(t) loans or advances to directors and employees of Parent or any Restricted Subsidiary made in the ordinary course of business; provided that the aggregate amount of such loans and advances outstanding, when aggregated with the Guarantees then outstanding under Section 7.01(k), at any time shall not entered into for speculative purposesexceed $10,000,000;
(u) any other Investment so long as the aggregate amount of all such Investments made after the ClosingAmendment No. 2 Effective Date does not exceed the greater of $300,000,000500,000,000 and 10.0% of Consolidated Total Assets at any time outstanding;
(v) any Permitted Reorganization;
(w) Parent and its Restricted Subsidiaries may make additional Investments using the Available Amount so long as the Available Amount Conditions have been met; and
(jx) InvestmentsInvestments made by Jazz Financing Lux S.à x.x. in or to Arrivo purusantpursuant to the Arrivo Agreement; provided that the aggregate amount of Investments made pursuant to the Arrivo Agreement shall not exceeedexceed $25,000,000. For purposes of covenant compliance with this Section 7.04, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in addition to Investments permitted under clauses the value of such Investment or accrued and unpaid interest or dividends thereon, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of such Investment. For purposes of clause (aq), clause (u), clause (w) through and clause (hx) of this Section 6.057.04, but including Investments permitted under Section 6.04(b)the aggregate consideration payable for any Investment shall be the cash amount paid on or prior to the consummation of such Investment and shall not include any purchase price adjustment, made after Milestone Payment, royalty, earnout, contingent payment, back-end payment or any other deferred payment of a similar nature that may be payable in connection therewith. Notwithstanding anything to the date hereof contrary in an aggregate amount the foregoing, Parent will not, and will not permit any of its Restricted Subsidiaries to, acquire any Unrestricted Margin Stock except to exceed $500,000,000 the extent it is acquired in any Person or Personsconnection with a Permitted Acquisition.
Appears in 1 contract
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 Wholly Owned Subsidiary prior to such merger) any capital stock, Capital Stock of or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliates(collectively, “Investments”), except:
(a) Permitted Investments;
(b) investments by Investments existing on the Parent Borrower or a Subsidiary Third Amendment Effective Date and set forth in Section 6.5 of the capital stock of its SubsidiariesDisclosure Letter;
(c) Investments in any Wholly Owned Subsidiary (other than any Unrestricted Subsidiary); provided that, if and to the extent applicable, the requirements set forth in Section 5.11 with respect to such Wholly Owned Subsidiary are satisfied;
(d) loans or and advances made by the Parent Borrower to, and Guarantees by the Parent Borrower to employees of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other SubsidiaryRestricted 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 not to exceed $7,500,000 at any time outstanding;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
6.2; provided that (ei) advances a Restricted Subsidiary shall not Guarantee any Subordinated Debt or loans made any Other Permitted Debt unless (A) such Restricted Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee and Collateral Agreement, (B) in the ordinary course case of business to employees 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 provides for the release and termination thereof, without action by any party, upon Disposition of the relevant Restricted Subsidiary, (ii) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Wholly Owned Subsidiary Guarantors that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clauses (c), (g), (l) or (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 its SubsidiariesCollateral Agreement;
(f) existing Investments Permitted Acquisitions (including any related Investment in any Restricted Subsidiary in order to provide all or any portion of (but not otherwise permitted under this Agreement and described in Schedule 6.05 heretomore than) the Consideration for such Permitted Acquisition);
(g) Investments received in connection with (i) Guarantees by the bona fide settlement Parent Borrower and any of its Restricted Subsidiaries of any defaulted Indebtedness or other liability owed to Contractual Obligations (not constituting Indebtedness) of the Parent Borrower or any SubsidiaryRestricted 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 cash pooling arrangements among Foreign Subsidiaries (sometimes intermediated by a commercial bank);
(h) Permitted Acquisitions; provided that if, any Investment made in any Joint Venture formed solely in connection with (and as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulationstransactions involving) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09Permitted Asset Disposition;
(i) Swap Agreements not entered into for speculative purposesInvestments financed with Capital Stock of the Parent Borrower (or 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 such 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 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 permitted 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 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); and
(jm) Investments(i) other Investments if, after giving effect to any such Investment on a pro forma basis in addition 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 2.75 to 1.0 and (ii) other Investments permitted under clauses in the aggregate not to exceed an amount equal to (aA) through 10% of the Total Consolidated Assets (hdetermined at the time of making such Investment) of this Section 6.05, but including plus (B) an additional amount for all such Investments permitted under Section 6.04(b), made after the Funding Date that is equal to the portion, if any, of the Available Amount on such date hereof 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 an aggregate 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 2.75 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 any 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 to exceed $500,000,000 in any Person or Personsbe less than zero.
Appears in 1 contract
Samples: Credit Agreement (SPX Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Irish Holdco, the Irish Sub Holdco, the Lux Holdco and each Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, (i) purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any capital stock, evidences evidence of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or (ii) purchase or otherwise acquire (in one transaction or a series of transactions) substantially all the assets of any Person or any assets of any other Person constituting a business unit or the unit, division, product line (including rights in respect of any licensee under drug or other pharmaceutical product) or line of business of such Person, or (iii) acquire an exclusive long-term license of rights to a trademark license to such licensee from the Parent Borrower drug or other product line of any of its AffiliatesPerson (each, an “Investment”) except:
(a) cash and Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesPermitted Acquisitions;
(c) loans Investments by the Irish Holdco and its Restricted Subsidiaries existing on the ClosingAmendment No. 1 Effective Date and set forth on Schedule 6.04 and any modification, replacement, renewal or advances extension thereof to the extent not involving any additional Investment;
(d) Investments made by the Parent Borrower toIrish Holdco in or to any Restricted Subsidiary and made by any Restricted Subsidiary in or to the Irish Holdco or any other Restricted Subsidiary (including, without limitation, any Intercompany Proceeds Loans) and Guarantees by the Parent Borrower of obligations of, Irish Holdco or any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Restricted Subsidiary of obligations of, the Parent Borrower or of any other Restricted Subsidiary; provided that the amount of any Investment by a Loan Party to a Restricted Subsidiary which is not a Loan Party or constituting a Guarantee of obligations of any Restricted Subsidiary that is not a Loan Party shall not exceed, together with the aggregate amount of all other Investments pursuant to this proviso, and Section 6.04(y) below, $900,000,000 at any time outstanding;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) Investments made as a result of the receipt of non-cash consideration from a Disposition, of any asset in compliance with Section 6.03;
(h) Investments in the form of Swap Agreements permitted by Section 6.05;
(i) payroll, travel and similar advances to directors, officers and employees of the Parent, the Irish Holdco or loans any Restricted Subsidiary that are made in the ordinary course of business;
(j) extensions of trade credit in the ordinary course of business;
(k) Investments to the extent the consideration paid therefor consists of Equity Interests (other than Disqualified Equity Interests) of the Parent;
(l) Investments of any Person in existence at the time such Person becomes a Restricted Subsidiary; provided such Investment was not made in connection with or anticipation of such Person becoming a Restricted Subsidiary and any modification, replacement, renewal or extension thereof;
(m) transfers of rights with respect to one or more products or technologies under development to joint ventures with third parties or to other entities where the Irish Holdco or a Restricted Subsidiary retains rights to acquire such joint ventures or other entities or otherwise repurchase such products or technologies;
(n) any customary upfront milestone, marketing or other funding payment in the ordinary course of business to employees of another Person in connection with obtaining a right to receive royalty or other payments in the Parent Borrower and its Subsidiariesfuture;
(fo) existing Investments not otherwise permitted under this Agreement made in Therapeutics pursuant to the Acquisition Documentation and described as contemplated in Schedule 6.05 heretothe Structure Paper;
(gp) Investments received in connection with Exclusive Licenses from a Foreign Subsidiary to the bona fide settlement Irish Holdco or a Domestic Subsidiary of any defaulted Indebtedness rights to a drug or other liability owed to the Parent Borrower pharmaceutical products, diagnostics, delivery technologies, medical devices or any Subsidiarybiotechnology businesses acquired by such Foreign Subsidiary in an acquisition permitted by Section 6.03;
(hq) Investments in joint ventures (including JV Subsidiaries) and acquisitions of Equity Interests that would constitute Permitted AcquisitionsAcquisitions but for the fact that Persons in which such Equity Interests are acquired do not become wholly owned Subsidiaries of the Irish Holdco; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 the sum of the Code aggregate amount of Federal Regulationssuch Investments, plus the aggregate consideration paid in all such acquisitions, made under this clause (q) or shall not exceed the greater of (iix) $100,000,000 and (y) 10% of Consolidated EBITDA for the period of four (4) consecutive fiscal quarters ending as of the last day of the most recent fiscal quarter for which Financials have been delivered, in each case, at any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor time outstanding;
(r) [Reserved];
(s) [Reserved];
(t) Investments consisting of Liens made in accordance with Section 5.09;
6.02; (iu) Swap Agreements not entered into for speculative purposesloans or advances to directors and employees of the Parent, the Irish Holdco or any Restricted Subsidiary made in the ordinary course of business; and
(j) Investmentsprovided that the aggregate outstanding amount of such loans and advances, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted when aggregated with the Guarantees then outstanding under Section 6.04(b6.01(l), made after the date hereof in an aggregate amount at any time shall not to exceed $500,000,000 in any Person or Persons.20,000,000;
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Restricted Subsidiaries to, (i) purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Wholly Owned Restricted Subsidiary prior to such merger) any capital stockEquity Interest, 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 (ii) purchase or otherwise acquire (in one transaction or a series of transactions) substantially all the assets of any Person or any assets of any other Person constituting a business unit or the unit, division, product line (including rights in respect of any licensee under drug or other pharmaceutical product) or line of business of such Person, or (iii) acquire an Exclusive License of rights to a trademark license to such licensee from the Parent Borrower drug or other product line of any of its AffiliatesPerson (each, an “Investment”) except:
(a) cash and Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesPermitted Acquisitions;
(c) loans Investments by Parent and its Restricted Subsidiaries existing on the date hereofClosing Date or advances made by Parent and its Restricted Subsidiaries pursuant to legally binding written contracts in existence on the Parent Borrower todate hereofClosing Date, in each case, set forth on Schedule 7.04 and Guarantees by any modification, replacement, reinvestment, renewal or extension thereof to the Parent Borrower of obligations of, extent not involving any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Subsidiaryadditional net Investment;
(d) Investments made by Parent in or to any Restricted Subsidiary and made by any Restricted Subsidiary in or to Parent or any other Restricted Subsidiary and Guarantees by Parent or any Restricted Subsidiary of obligations of any other Restricted Subsidiary; provided that (i) the amount of any Investment under this clause (d) by a Loan Party in a Restricted Subsidiary which is not a Loan Party made after the Closing Date or constituting a Guarantee of obligations of any Restricted Subsidiary that is not a Loan Party made after the Closing Date shall not exceed, together with the aggregate amount of all other Investments made pursuant to this proviso, $100,000,000 at any time outstanding (excluding any intercompany accounts payable and receivable, guarantee fees and transfer pricing arrangements), and (ii) in the case of any intercompany Indebtedness (other than Indebtedness among Subsidiaries that are not Loan Parties and, for the avoidance of doubt, any intercompany accounts payable and receivable, guarantee fees and transfer pricing arrangements), (A) each item ofto the extent such intercompany Indebtedness is in an aggregate principal amount exceeding $10,000,000, such intercompany Indebtedness shall be evidenced by a promissory note (which shall be substantially in the form of Exhibit H hereto or such other form as is reasonably acceptable to the Administrative Agent), (B) each promissory note evidencing intercompany Indebtedness madeowed by any Loan Party to a Subsidiary that is not a Loan Party to a Loan Party shall contain the subordination provisions set forth in Exhibit I and (C) such Indebtedness and each promissory note evidencing such intercompany Indebtedness held by a Loan Party shall be pledged to the Collateral Agent pursuant to the applicable Collateral Documents to the extent required thereby;
(e) Guarantees constituting Indebtedness permitted by Section 6.017.01;
(e) advances or loans made in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its 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 Subsidiary prior to such mergermerger or consolidation or Division) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
(c) investments by the Parent Borrower or a Subsidiary and its Subsidiaries existing on the Restatement Effective Date in the capital stock of its Subsidiaries;
(cd) investments, loans or advances made by the Parent Borrower to, in or to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, in or to the Parent Borrower or any other SubsidiarySubsidiary (provided that not more than an aggregate amount of $10,000,000 in investments, loans or advances or capital contributions may be made and remain outstanding pursuant to this Section 6.04(d), at any time, by Loan Parties to Subsidiaries which are not Loan Parties);
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) advances or loans made in the ordinary course of business to employees investments acquired by reason of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement exercise of any defaulted Indebtedness customary creditor’s rights upon default or other liability owed pursuant to the Parent bankruptcy, insolvency or reorganization of an account debtor of the Borrower or any Subsidiary;
(g) investments by the Borrower or any Subsidiary pursuant to any Swap Agreements to the extent permitted under Section 6.05;
(h) Permitted Acquisitionsinvestments by the Borrower or any Subsidiary in equity interests of Persons (other than Subsidiaries) engaged in lines of business of the type conducted by the Borrower and its Subsidiaries as of the Restatement Effective Date and businesses reasonably related thereto; provided that no investment shall be made under this clause (h) if, together with all other investments under this clause (h) (calculated as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code date made and without giving effect to any increase or decrease in the value thereof), the aggregate amount of Federal Regulationsall investments under this clause (h) or shall exceed 10% of Consolidated Total Assets (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to calculated as of the Guarantee Agreement as a Guarantor in accordance with Section 5.09last day of the most recent fiscal year);
(i) Swap Agreements [intentionally omitted];
(j) [intentionally omitted];
(k) other investments by the Borrower or any Subsidiary not entered into for speculative purposesin excess of 10.0% of Consolidated Total Assets (calculated as of the last day of the most recent fiscal year); and
(jl) Investments, in addition to Investments permitted under clauses payment or performance Guarantees of Affiliates (aother than any Subsidiaries of the Borrower) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof not constituting Indebtedness in an aggregate amount not to exceed $500,000,000 in 20,000,000 at any Person or Personstime outstanding.
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliates, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its Subsidiaries;
(c) loans or advances made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.095.10;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 750,000,000 in any Person or Persons.
Appears in 1 contract
Samples: Credit Agreement (Ralph Lauren Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower MK Holdings will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger merger, amalgamation or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger, amalgamation or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliates(collectively, “Investments”), except:
(a) Permitted InvestmentsInvestments and Investments that were Permitted Investments when made;
(b) investments Investments by the Parent Borrower MK Holdings or a Subsidiary in the capital stock of its Subsidiaries;
(c) loans or advances made by the Parent Borrower MK Holdings to, and Guarantees by the Parent Borrower MK Holdings of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower MK Holdings or any other Subsidiary;
(d) (i) Guarantees constituting Indebtedness permitted by pursuant to Section 6.016.01 and (ii) Guarantees of obligations not constituting Indebtedness made in the ordinary course of business, provided that the Guarantees permitted under this clause (ii) could not in the aggregate reasonably be expected to have a Material Adverse Effect;
(e) advances or loans made in the ordinary course of business to officers, directors, employees and agents of the Parent Borrower and MK Holdings or any of its Subsidiaries;
(f) Investments existing Investments not otherwise permitted under this Agreement on the Effective Date and described in Schedule 6.05 hereto6.04 hereto and any renewals, amendments and replacements thereof that do not increase the amount thereof (other than in respect of capitalized interest and reasonable expenses);
(g) Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of suppliers, customers and other third parties or in settlement of delinquent obligations of, or other disputes with, customers, suppliers and other third parties arising in the ordinary course of business or in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower MK Holdings or any Subsidiary;
(h) Permitted AcquisitionsAcquisitions and Investments of a Person or business acquired in such Permitted Acquisition so long as such Investment was not made in contemplation of such Acquisition; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) Material Subsidiary or (ii) any then existing Domestic Subsidiary shall become such a Significant Material Subsidiary, in each case such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; andpermitted by Section 6.05;
(j) Investments, Investments in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof joint ventures in an aggregate amount not to exceed $500,000,000 100,000,000 in the aggregate;
(k) indemnities made and security deposits and surety bonds issued in the ordinary course of business;
(l) indemnities made in the Loan Documents;
(m) accounts, chattel paper and notes receivable arising from the sale or lease of goods or the performance of services in the ordinary course of business;
(n) promissory notes and other non-cash consideration that is permitted to be received in connection with Dispositions permitted by Section 6.03;
(o) Investments held by a Subsidiary acquired after the Effective Date or of a Person merged into a Loan Party or any Subsidiary of a Loan Party, in either case, in a transaction permitted by Section 6.03 after the Effective Date to the extent such Investments were not made in contemplation of or in connection with such merger, amalgamation or consolidation and were in existence on the date of such merger, amalgamation or consolidation;
(p) loans and advances to any direct or indirect parent of MK Holdings in lieu of, and not in excess of the amount (after giving effect to any other loans, advances or Restricted Payments in respect thereof), Restricted Payments to the extent permitted to be made to such direct or indirect parent in accordance with Section 6.07(d), (e) or (f);
(q) Investments for which no consideration is provided by any Loan Party or any Subsidiary;
(r) Investments to the extent that payment for such Investments is made solely in exchange for Equity Interests of MK Holdings; and
(s) other Investments in any Person or PersonsPersons made after the date hereof, in an aggregate outstanding amount not to exceed $500,000,000. Any Investment in any Person other than a Loan Party that is otherwise permitted by this Section 6.04 may be made through intermediate Investments in Subsidiaries that are not Loan Parties and such intermediate Investments shall be disregarded for purposes of determining the outstanding amount of Investments pursuant to any clause set forth above. For purposes of compliance with this Section 6.04, the amount of any Investment shall be the amount initially invested, without adjustment for subsequent increases or decreases in the value of such Investment, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of such Investment.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment Investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesPermitted Acquisitions;
(c) Investments by the Borrower in the Equity Interests of its Subsidiaries; provided that any Investments made by the Borrower after the date of the Term Credit Agreement in the Equity Interests of a Subsidiary which is not a Loan Party must comply with the proviso to Section 6.04(d);
(d) loans or advances made by the Parent Borrower to, to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary; provided that the Borrower will not, nor will it permit any other Loan Party to, enter into or suffer to exist Other Subsidiary Investments at any time during any fiscal year (but calculated exclusive of all Other Subsidiary Investments existing immediately prior to such fiscal year) of the Borrower in an aggregate amount greater than $10,000,000;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) Investments in existence on the date of this Agreement and described in Schedule 6.04;
(g) notes payable or stock or other securities issued by account debtors to the Borrower or any Subsidiary 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) loans or advances made by the Borrower or loans made 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 employees a maximum of $2,000,000 in the Parent Borrower and its Subsidiariesaggregate at any one time outstanding;
(fi) existing Investments not otherwise in the form of Swap Agreements permitted under this Agreement and described in Schedule 6.05 heretoby Section 6.07;
(gj) 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 so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;
(k) Investments received in connection with the bona fide settlement disposition of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiaryassets permitted by Section 6.05;
(hl) Investments constituting deposits described in clauses (c) and (d) of the definition of “Permitted AcquisitionsEncumbrances”; and
(m) Investments resulting from the 2008 Restructuring provided that if, as a result of a Permitted Acquisition, (i) a new Domestic the Subsidiaries created to effect the 2008 Restructuring execute and deliver the Subsidiary shall be created Guaranty and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor related documents in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition 5.09 prior to Investments permitted under clauses (a) through (h) the effective date of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not asset transfers to exceed $500,000,000 in any Person or Personssuch Subsidiaries.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Parent Borrower or a Subsidiary Revolving 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 in the capital stock Equity Interests of its their respective Subsidiaries;
(cd) loans or advances made by the Parent Borrower to, to any Subsidiary of the Borrower (or to Holdings) and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower to the Borrower or any other SubsidiarySubsidiary of the Borrower;
(de) Guarantees constituting by the Borrower and its Subsidiaries of obligations of the Borrower or any of its Subsidiaries; provided that any such Guarantees by Subsidiaries of the Borrower of obligations of the Borrower shall be limited to Guarantees of Indebtedness that are permitted by Section 6.01;
(ef) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 heretobusiness;
(g) Investments 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 connection with the bona fide settlement of an aggregate principal amount not exceeding $5,000,000 at any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiarytime outstanding;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created loans or advances to employees in the ordinary course of business; provided that the aggregate amount of all loans and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
advances permitted by this clause (i) Swap Agreements shall not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in 750,000 at any Person or Persons.time outstanding;
Appears in 1 contract
Samples: Term Loan Credit Agreement (Advance Auto Parts Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, 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 make or permit to exist any Guarantees of any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactionstransactions (including pursuant to any merger)) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Parent Borrower or a Subsidiary Agreement Date and set forth in the capital stock of its SubsidiariesSchedules 4.12 and 7.4;
(c) investments made by the Borrower in the Equity Interests of any Subsidiary Guarantor and made by any Subsidiary Guarantor in the Equity Interests of any other Subsidiary Guarantor;
(d) loans or advances made by the Parent Borrower to, to any other Loan Party and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted Loan Party, provided that any such loans and advances made by Section 6.01a Loan Party shall be evidenced by a promissory note which shall be pledged pursuant to the Security Agreement;
(e) advances acquisitions made by the Borrower from any Subsidiary Guarantor and made by any Subsidiary Guarantor from the Borrower or loans made in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;any other Subsidiary Guarantor; and
(f) existing Investments not otherwise Guarantees permitted under this Agreement and described in Schedule 6.05 hereto;by Section 7.1; and
(g) Investments received if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing other investments, loans, advances, Guarantees and acquisitions, provided that the sum of (i) the aggregate consideration paid by the Borrower or any Subsidiary in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that ifall such acquisitions, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary the aggregate amount of all such investments, loans and advances outstanding and (iii) the amount of obligations and liabilities outstanding in the aggregate that is Guaranteed pursuant to all such Guarantees, shall become such a Significant Subsidiarynot, such Domestic Subsidiary shall thereafter become party to together with all amounts utilized under Section 11.4(g) of the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) InvestmentsAgreement, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in 2,500,000 at any Person or Personstime.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock Equity Interests of its SubsidiariesSubsidiaries and, subject to limitations in Section 6.06, any repurchase of the Equity Interests of the Borrower;
(c) loans or advances made by the Parent Borrower to, to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary;
(d) Guarantees Acquisitions meeting the following requirements or otherwise approved by the Required Lenders (each such Acquisition constituting Indebtedness permitted a "Permitted Acquisition"):
(i) as of the date of the consummation of such Acquisition, no Default shall have occurred and be continuing or would result from such Acquisition, and the representation and warranty contained in Section 5.08 shall be true both before and after giving effect to such Acquisition;
(ii) such Acquisition is consummated on a non-hostile basis pursuant to a negotiated acquisition agreement approved by Section 6.01the board of directors or other applicable governing body of the seller or entity to be acquired, and no material challenge to such Acquisition (excluding the exercise of appraisal rights) shall be pending or threatened by any shareholder or director of the seller or entity to be acquired;
(iii) the business to be acquired in such Acquisition is similar or related to one or more of the lines of business in which the Borrower and its Subsidiaries are engaged on the Effective Date;
(iv) as of the date of the consummation of such Acquisition, all material approvals required in connection therewith shall have been obtained; and
(v) (A) on the date such Acquisition occurs and after giving effect to such Acquisition, the Adjusted Leverage Ratio would not exceed 3.00 to 1.00, and Borrower has delivered a Compliance Certificate to Administrative Agent on or before such date of the Acquisition reflecting such compliance in form and substance satisfactory to Administrative Agent, and (B) that (I) do not exceed in the aggregate $75,000,000.00 in cash and/or non-cash consideration during any twelve (12) month period and (II) do not exceed in the aggregate $125,000,000.00 in cash and/or non-cash consideration during the term of this Agreement;
(e) advances Investments (which for purposes of this Section 6.04(e) only shall include purchasing, holding or loans made in the ordinary course acquiring any capital stock, evidences of business indebtedness or other securities (including any option, warrant or other right to employees acquire any of the Parent Borrower and its Subsidiaries;
foregoing) of, making or permitting to exist any loans or advances to, or making or permitting to exist any investment or any other interest in, any other Person, or purchasing or otherwise acquiring (fin one transaction or a series of transactions) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement any assets of any defaulted Indebtedness other Person constituting a business unit) meeting the following requirements or other liability owed to otherwise approved by the Parent Borrower or any Subsidiary;
Required Lenders (h) each such investment constituting a "Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;Entity Investment"):
(i) Swap Agreements not entered into for speculative purposesas of the date of the consummation of such Permitted Entity Investment, no Default shall have occurred and be continuing or would result from such Permitted Entity Investment, and the representation and warranty contained in Section 5.08 shall be true both before and after giving effect to such Permitted Entity Investment;
(ii) such Permitted Entity Investment is consummated on a non-hostile basis pursuant to a negotiated agreement approved by the board of directors or other applicable governing body of the seller or entity to be acquired, and no material challenge to such Permitted Entity Investment shall be pending or threatened by any shareholder or director of the seller or entity to be acquired;
(iii) the business relating to such Permitted Entity Investment is similar or related to one or more of the lines of business in which the Borrower and its Subsidiaries are engaged on the Effective Date;
(iv) as of the date of the consummation of such Permitted Entity Investment, all material approvals required in connection therewith shall have been obtained; and
(jv) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after on the date hereof such Permitted Entity Investment occurs and after giving effect to such Permitted Entity Investment, the Adjusted Leverage Ratio would not exceed 3.00 to 1.00, and Borrower has delivered a Compliance Certificate to Administrative Agent on or before such date of the Permitted Entity Investment reflecting such compliance in an aggregate amount not form and substance satisfactory to exceed $500,000,000 in any Person or PersonsAdministrative Agent.
Appears in 1 contract
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 or consolidation with any Person that was not a wholly owned Restricted Subsidiary prior to such mergermerger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) cash and Permitted Investments;
(b) investments by Permitted Acquisitions; provided, however, that no Permitted Acquisition shall be permitted under this clause (b) during the Parent Borrower or a Subsidiary in period beginning on the capital stock of its Subsidiaries;Amendment No. 2 Effective Date and ending on March 31, 2021.
(c) investments, loans and advances by the Borrower and its Restricted Subsidiaries existing on the date hereof in or to other Persons (including investments, loans and advances by Borrower in or to its Restricted Subsidiaries), in each case as set forth on Schedule 6.04;
(d) investments, loans or advances made by the Parent Borrower to, in or to any Restricted Subsidiary and made by any Restricted Subsidiary in or to the Borrower or any other Restricted Subsidiary and Guarantees by the Parent Borrower or any Restricted Subsidiary for the benefit of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Restricted Subsidiary; provided that, at the time of any such investment, loan, advance by any Loan Party in, or Guarantee by any Loan Party for the benefit of, any Restricted Subsidiary that is not a Loan Party, the aggregate amount of all such investments, loans, advances, and Guarantees which are outstanding, shall not collectively exceed the greater of (x) $25,000,000 and (y) an amount equal to 10% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the most recent financial statements referred to in Section 3.04), as applicable; provided, however, that no investment, loan or advance by any Loan Party in or to any Person that is not a Loan Party shall be permitted under this clause (d) during the Modification Period;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) cash and marketable securities held in Deposit Accounts (as defined in the Security Agreement) or Securities Accounts (as defined in the Security Agreement), which are subject to control agreements to the extent required by the Security Agreement;
(g) investments in negotiable instruments for collection in the ordinary course of business;
(h) advances made in connection with purchases of goods or loans made services in the ordinary course of business;
(i) investments received in settlement of delinquent obligations to the Borrower or any Restricted Subsidiary effected in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed owing to the Parent Borrower or any Restricted Subsidiary as a result of any bankruptcy or insolvency proceeding involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of the Borrower or any Restricted Subsidiary;
(hj) Permitted Acquisitions; provided that ifinvestments, as loans, advances and Guarantees existing on the Effective Date and set forth on Schedule 6.04;
(k) investments arising under Swap Agreements entered into in compliance with Section 6.05;
(l) loans or advances made by the Borrower or any Restricted Subsidiary to its employees in the ordinary course of business consistent for travel and entertainment expenses, relocation costs and similar purposes up to a result maximum of $4,000,000 in the aggregate at any one time outstanding;
(m) investments, loans and advances owned by, and Guarantees made by, any Person existing at the time such Person becomes a Restricted Subsidiary of the Borrower or consolidates or merges with the Borrower or any of its Restricted Subsidiaries (including in connection with a Permitted Acquisition) so long as such investments, (i) loans, advances and Guarantee were not made in contemplation of such Person becoming a new Domestic Restricted Subsidiary shall be created and or of such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) consolidation or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09merger;
(i) Swap Agreements endorsements for collection or deposit in the ordinary course of business and consistent with past practice and (ii) extensions of trade credit in the ordinary course of business;
(o) investments by any Loan Party or any Restricted Subsidiary of a Loan Party in any Restricted Subsidiary of such Person in such amount which is required by law to maintain a minimum net capital requirement or as may otherwise be required by applicable law or regulation;
(p) extensions of credit consisting of accounts receivable or notes receivable arising from the sale or lease of goods in the ordinary course of business of the Borrower or any Restricted Subsidiary;
(q) investments held and loans and advances made by a Person acquired in a Permitted Acquisition or an acquisition that is otherwise permitted hereunder to the extent that none of such investments, loans or advances were made in connection with or contemplation of such acquisition and were in existence as of the date of consummation of such acquisition; provided, that no such investments shall be permitted to occur during the Modification Period;
(r) investments by the Borrower or any of its Restricted Subsidiaries for which the consideration consists solely of Equity Interests of the Borrower;
(s) any endorsement of a check or other medium of payment for deposit or collection, or any similar transaction, in each case in the ordinary course of business;
(t) investments in Unrestricted Subsidiaries; provided that, the Consolidated EBITDA of the Borrower and its Subsidiaries attributable to all such Unrestricted Subsidiaries is not entered into greater than twelve and one half percent (12.5%) of Consolidated EBITDA of the Borrower and its Subsidiaries for speculative purposesthe most recently ended period of four fiscal quarters based on the financial statements most recently delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the most recent financial statements referred to in Section 3.04), as applicable; provided, further, that only investments in existence on the Amendment No. 2 Effective Date shall be permitted under this clause (t) during the Modification Period, and no further or additional investments in such Unrestricted Subsidiaries shall be made during the Modification Period;
(u) any other investment, loan, advance or Guarantee (other than acquisitions) so long as during the term of this Agreement, at the time of making any such Investment, loan, advance or Guarantee, the aggregate amount of all such investments, loans, advances and Guarantees which are outstanding, do not collectively exceed an amount equal to the greater of (x) $25,000,000 and (y) 10% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the most recent financial statements referred to in Section 3.04), as applicable; provided, however, that during the Modification Period, no more than $5,000,000 in the aggregate of investments, loans, advances and Guarantees shall be permitted to be made under the clause (u), and any investment constituting an asset transfer shall be made in cash for fair market value; and
(jv) Investments, in addition investments by an Unrestricted Subsidiary entered into prior to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Personsday that such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries other Loan Party to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary of Borrower or that is a Foreign Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) investments and loans and advances existing on the date hereof and set forth on Schedule 6.04;
(b) Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its Subsidiaries;
(c) loans or advances made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Subsidiary[reserved];
(d) Guarantees constituting Indebtedness permitted loans or advances by Section 6.01the Borrower or any of its Subsidiaries to their respective employees, directors, managers, officers, agents, customers, or suppliers in the ordinary course of business, not to exceed $500,000 in the aggregate at any one time outstanding;
(e) advances Accounts receivable owned by the Borrower or loans made any of its Subsidiaries, if created in the ordinary course of business to employees of the Parent Borrower and its Subsidiariespayable or dischargeable in accordance with customary trade terms;
(fi) existing Investments Guarantees of the obligations (other than Indebtedness) of any Domestic Subsidiary that is not otherwise permitted under this Agreement a Wholly-Owned Subsidiary by any other Domestic Subsidiary that is not a Wholly-Owned Subsidiary, and described in Schedule 6.05 hereto(ii) Guarantees of the obligations (other than Indebtedness) of an Obligor by any other Obligor; provided that a Guarantor shall not Guarantee any Subordinated Debt;
(g) Investments investments (i) received in connection with the bona fide bankruptcy or reorganization of, or settlement of any defaulted Indebtedness delinquent Accounts and disputes with, customers and suppliers, in each case in the ordinary course of business or other liability owed (ii) received in settlement of debts created in the ordinary course of business and owing to the Parent Borrower or any SubsidiarySubsidiary or in satisfaction of judgments;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, investments (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined by any Obligor in Regulation S-Xany other Obligor, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) by any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such of Borrower that is not an Obligor or the Borrower in any other Domestic Subsidiary shall thereafter become party of the Borrower that is not an Obligor, (ii) by any Foreign Subsidiary of Borrower in any other Foreign Subsidiary of Borrower, or (iii) by Borrower or any Domestic Subsidiary in Foreign Subsidiaries in an aggregate amount not exceeding the sum of $500,000 plus the amount of equity contributions made to Borrower that are used to fund such investments; and
(i) investments in the Guarantee Agreement form of Acquisitions permitted pursuant to Section 6.18;
(j) any reinvestment of the proceeds of any involuntary disposition or of any disposition, in each case, so long as a Guarantor in accordance with Section 5.09such reinvestment is permitted by the terms hereof;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, investments in addition to Investments assets useful in the business of any Obligor using the proceeds of any disposition made by an Obligor permitted under clauses (a) through (h) of this by Section 6.05, but including Investments and (ii) investments in assets useful in the business of any Loan Party that is not an Obligor using the proceeds of any disposition made by any Loan Party that is not an Obligor permitted under by Section 6.04(b)6.05,
(l) investments in Canadian Foreign Subsidiaries of the Borrower, made after by way of the date hereof conveyance of equipment, in an aggregate amount not to exceed fifteen percent (15%) of the book value of the proppant management systems and related equipment shown on the financial statements most recently delivered pursuant to Section 5.01 hereof;
(m) other investments (in the form of cash or other assets) in an aggregate amount not to exceed $500,000,000 30,000,000 at any one time outstanding; provided that (i) before and after giving effect to such investment, no Default or Event of Default shall have occurred and be continuing, and (ii) the Borrower shall be in pro forma compliance with the financial covenants in Section 5.13 as of the immediately preceding fiscal quarter end for which financial statements are available; and
(n) investment in the form of an acquisition (in one transaction or as the most recent transaction in a series of transactions) of the Equity Interest in any Person that does not otherwise constitute an Acquisition so long as each of the following conditions are met: (i) before and after giving effect to such investment, no Default or PersonsEvent of Default shall have occurred and is continuing, (ii) such acquisition shall be funded solely with (A) proceeds resulting from the issuance of common Equity Interests of the Borrower or Solaris Inc. or cash capital contributions on account of common Equity Interests of the Borrower or Solaris Inc. or (B) Equity Interests of the Borrower or Solaris Inc., and (iii) if such investment is made by a Subsidiary that is not a Wholly-Owned Subsidiary, then any proceeds resulting from the issuance of common Equity Interests of the Borrower or Solaris Inc. or cash capital contributions on account of common Equity Interests of the Borrower or Solaris Inc. that are contributed to such Subsidiary to make such investment shall be permitted under Section 6.04(m) above.
Appears in 1 contract
Samples: Credit Agreement (Solaris Oilfield Infrastructure, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent and the Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, 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 or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Parent Parent, the Borrower or any Subsidiary that is a Guarantor in the Parent, the Borrower or any such Subsidiary;
(c) additional purchases of or investments by the Parent, the Borrower or any Subsidiary in the capital stock of its Subsidiaries;
(c) loans , including Foreign Subsidiaries, joint ventures or advances made by the Parent Borrower tocapital stock, and Guarantees by the Parent Borrower assets, obligations or other securities of obligations of, any Subsidiaryor interests in other Persons, and loans or and advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations ofthe Parent, the Parent Borrower or any other SubsidiaryDomestic Subsidiary to or in favor of, Foreign Subsidiaries, in an amount in the aggregate at any time outstanding which does not exceed 15% of consolidated shareholders' equity of the Parent;
(d) Guarantees constituting Indebtedness permitted by clause (c)(i), (ii), or (iii) of Section 6.01;
(e) Guarantees of Indebtedness of any Loan Party permitted by Section 6.01 and Guarantees of Indebtedness of Foreign Subsidiaries permitted by Section 6.01(h);
(f) loans and advances to officers and directors of any Loan Party (or employees thereof provided such loans made and advances are approved by an officer of a Loan Party) for travel, entertainment and relocation expenses in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments in an aggregate principal amount outstanding at any time that shall not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;exceed $1,000,000; and
(g) Investments received in connection with the bona fide settlement investments of any defaulted Indebtedness or other liability owed funds intended to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof fund deferred compensation liabilities in an aggregate amount not to exceed $500,000,000 in 75,000,000 at any Person time outstanding, provided that such investments are made pursuant to policies approved from time to time by the Board of Directors of the Parent and continue at all times to be assets of the Parent, the Borrower or Personsanother Loan Party subject to the claims of its general creditors.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries other Loan Party to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary of Borrower or that is a Foreign Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except::
(a) investments and loans and advances existing on the date hereof and set forth on Schedule 6.04;
(b) Permitted Investments;
(bc) investments by the Parent Borrower or a Subsidiary in the capital stock of its Subsidiaries;[reserved];
(cd) loans or advances made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01of its Subsidiaries to their respective employees, directors, managers, officers, agents, customers, or suppliers in the ordinary course of business, not to exceed $500,000 in the aggregate at any one time outstanding;
(e) advances Accounts receivable owned by the Borrower or loans made any of its Subsidiaries, if created in the ordinary course of business to employees of the Parent Borrower and its Subsidiariespayable or dischargeable in accordance with customary trade terms;
(f) existing Investments (i) Guarantees of the obligations (other than Indebtedness) of any Domestic Subsidiary that is not otherwise permitted under this Agreement a Wholly-Owned Subsidiary by any other Domestic Subsidiary that is not a Wholly-Owned Subsidiary, and described in Schedule 6.05 hereto(ii) Guarantees of the obligations (other than Indebtedness) of an Obligor by any other Obligor; provided that a Guarantor shall not Guarantee any Subordinated Debt;
(g) Investments investments (i) received in connection with the bona fide bankruptcy or reorganization of, or settlement of any defaulted Indebtedness delinquent Accounts and disputes with, customers and suppliers, in each case in the ordinary course of business or other liability owed (ii) received in settlement of debts created in the ordinary course of business and owing to the Parent Borrower or any SubsidiarySubsidiary or in satisfaction of judgments;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, investments (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined by any Obligor in Regulation S-Xany other Obligor, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) by any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such of Borrower that is not an Obligor or the Borrower in any other Domestic Subsidiary shall thereafter become party of the Borrower that is not an Obligor, (iii) by any Foreign Subsidiary of Borrower in any other Foreign Subsidiary of Borrower, or (iv) by Borrower or any Domestic Subsidiary in Foreign Subsidiaries in an aggregate amount not exceeding the sum of $500,000 plus the amount of equity contributions made to Borrower that are used to fund such investments; and
(i) investments in the Guarantee Agreement form of Acquisitions permitted pursuant to Section 6.18;
(j) any reinvestment of the proceeds of any involuntary disposition or of any disposition, in each case, so long as a Guarantor in accordance with Section 5.09such reinvestment is permitted by the terms hereof;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, investments in addition to Investments assets useful in the business of any Obligor using the proceeds of any disposition made by an Obligor permitted under clauses (a) through (h) of this by Section 6.05, but including Investments and (ii) investments in assets useful in the business of any Loan Party that is not an Obligor using the proceeds of any disposition made by any Loan Party that is not an Obligor permitted under by Section 6.04(b)6.05, made after 83
(l) investments in Canadian Foreign Subsidiaries of the date hereof Borrower, by way of the conveyance of equipment, in an aggregate amount not to exceed fifteen percent (15%) of the book value of the proppant management systems and related equipment shown on the financial statements most recently delivered pursuant to Section 5.01 hereof;
(m) other investments (in the form of cash or other assets) in an aggregate amount not to exceed $500,000,000 30,000,000 at any one time outstanding; provided that (i) before and after giving effect to such investment, no Default or Event of Default shall have occurred and be continuing, and (ii) the Borrower shall be in pro forma compliance with the financial covenants in Section 5.13 as of the immediately preceding fiscal quarter end for which financial statements are available; and
(n) investment in the form of an acquisition (in one transaction or as the most recent transaction in a series of transactions) of the Equity Interest in any Person that does not otherwise constitute an Acquisition so long as each of the following conditions are met: (i) before and after giving effect to such investment, no Default or PersonsEvent of Default shall have occurred and is continuing, (ii) such acquisition shall be funded solely with (A) proceeds resulting from the issuance of common Equity Interests of the Borrower or Solaris Inc. or cash capital contributions on account of common Equity Interests of the Borrower or Solaris Inc. or (B) Equity Interests of the Borrower or Solaris Inc., and (iii) if such investment is made by a Subsidiary that is not a Wholly-Owned Subsidiary, then any proceeds resulting from the issuance of common Equity Interests of the Borrower or Solaris Inc. or cash capital contributions on account of common Equity Interests of the Borrower or Solaris Inc. that are contributed to such Subsidiary to make such investment shall be permitted under Section 6.04(m) above.
Appears in 1 contract
Samples: Amended and Restated Credit Agreement (Solaris Oilfield Infrastructure, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) make any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its AffiliatesAcquisition, except:
(a) Permitted Investments;
(b) investments by Investments, loans and advances existing on the Parent Borrower or a Subsidiary date hereof and set forth in Schedule 6.04 and extensions, renewals and replacements thereof that do not increase the capital stock of its Subsidiariesoutstanding 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, loans or advances made by (i) the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Subsidiary to the Borrower or any Domestic Subsidiary that is a Guarantor or (ii) any Foreign Subsidiary that is not a Guarantor to any Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees Acquisitions, provided that: (i) before and after giving pro forma effect thereto (as of the Parent Borrower end of the most recently ended Fiscal Quarter of the Borrower), no Default exists or would be caused thereby and its Subsidiaries(ii) if such Acquisition involves the acquisition of Equity Interests, the consummation of such Acquisition has been recommended by the Board of Directors and management of the target of such Acquisition;
(f) existing Investments Guarantees (i) by the Borrower or any Subsidiary of Indebtedness of the Borrower or any Domestic Subsidiary that is a Guarantor, (ii) by any Foreign Subsidiary that is not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;a Guarantor of any Indebtedness of any Subsidiary, or (iii) of any of the Obligations; and
(g) Investments received Guarantees, investments, loans or advances not otherwise permitted by this Section 6.04 not in connection with excess of fifteen percent (15%) of Consolidated Total Assets in the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitionsaggregate; provided that ifthe aggregate outstanding amount (exclusive of investments, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) loans or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party advances to the Guarantee Agreement as a Guarantor in accordance with Subsidiaries under Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h6.04(d)(ii)) of this Section 6.05such Guarantees of, but including Investments permitted under Section 6.04(b)and investments, made after loans or advances to, Subsidiaries that are not Guarantors shall not exceed seven and one-half percent (7.5%) of Consolidated Total Assets in the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Personsaggregate.
Appears in 1 contract
Samples: Term Loan Agreement (Perrigo Co)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary and its Subsidiaries existing on the date hereof in the capital stock of its their respective Subsidiaries and AppSwing Ltd., Nasdaq Stock Market, BioPassword, Inc., Azure Venture Partners I, L.P. and Azure Capital Partners II, L.P. stock or limited partnership interests and future investments in Subsidiaries;
(c) the contribution, sale, transfer or other disposition of the capital stock of any Subsidiary to the Borrower or any Subsidiary;
(d) loans or advances made by the Parent Borrower to, to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary, to the extent that such Indebtedness is permitted by Section 6.01;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers;
(g) accounts receivable arising in the ordinary course of business to employees of the Parent Borrower and its any Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result subject to the provisions of a this Section 6.04(h) 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 new Domestic Subsidiary no Default shall have occurred and be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 continuing at the time of the Code consummation of Federal Regulations) the proposed Permitted Acquisition or immediately after giving effect thereto; (ii) if the proposed Permitted Acquisition is for aggregate consideration of $100,000,000 or more, 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 shall describe in reasonable detail the principal terms and conditions of such Permitted Acquisition; and (iii) at the time of any then existing Domestic Subsidiary shall become such Permitted Acquisition involving the creation or acquisition of a Significant Subsidiary, such Domestic Subsidiary or the acquisition of capital stock or other Equity Interest of any Person, the Borrower and its Subsidiaries shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance have complied with Section 5.09;5.11; and
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investmentsinvestments by the Borrower or any Subsidiary in the Equity Interests of any Person, in addition or loans and advances made by the Borrower or any Subsidiary to Investments permitted under clauses (a) through (h) of this Section 6.05any Person, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 100,000,000 at any time outstanding (with the outstanding amount of investments in the Equity Interests of any Person at any time being an amount equal to the excess, if any, of the aggregate amount of such investments over the aggregate amount of dividends, distributions or Personssale proceeds received by the Borrower or such Subsidiary in respect thereof).
Appears in 1 contract
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 wholly-owned Restricted Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower or a any Restricted Subsidiary in the capital stock of any Restricted Subsidiary;
(c) investments by the Borrower and its Restricted Subsidiaries in its Unrestricted Subsidiaries and/or Permitted Joint Ventures; provided that the aggregate amount of investments permitted by this clause (c) shall not exceed $200,000,000 at anytime outstanding; provided that the limitation on investments in this clause (c) is not intended to limit Borrower’s ability to invest in Unrestricted Subsidiaries as set forth in clause (d) of this Section 6.04;
(d) investments by the Borrower and its Restricted Subsidiaries in its Unrestricted Subsidiaries and/or Permitted Joint Ventures out of the net proceeds received by Borrower from the issuance of any Equity Interests of the Borrower;
(e) investments by Restricted Subsidiaries in Permitted Joint Ventures; provided, that such Permitted Joint Ventures shall be deemed to be Restricted Subsidiaries for all purposes hereunder, except that for the purposes of calculating Consolidated EBITDA, Consolidated Net Income, and Consolidated Indebtedness, the inclusion of the relevant financial data regarding such Permitted Joint Ventures shall be limited to the percentage Equity Interest in such Permitted Joint Ventures owned by such Restricted Subsidiaries;
(cf) investments in Unrestricted Subsidiaries the proceeds of which shall be immediately used by such Unrestricted Subsidiary to repay outstanding Indebtedness of such Unrestricted Subsidiary; provided that the making of any such investment pursuant to this Section 6.04(f) shall be deemed to be an election by Borrower to convert such Unrestricted Subsidiary into a Restricted Subsidiary pursuant to Section 9.16 without any further action of Borrower;
(g) loans or advances made by the Parent Borrower to, to any Restricted Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Restricted Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or to any other Restricted Subsidiary;
(dh) Guarantees constituting Indebtedness permitted not prohibited by Section 6.01;
(ei) advances any purchases or loans made other acquisitions of all or substantially all of the Equity Interests in any Person that, immediately upon consummation thereof, will be a Restricted Subsidiary (including, without limitation, as a result of a merger or consolidation otherwise permitted under this Agreement) and any purchases or other acquisition of any property or assets of any Person;
(j) investments consisting of non-cash consideration with respect to any sale of assets by the Borrower or any Restricted Subsidiary;
(k) investments consisting of extensions of credit, including without limitation, in the nature of accounts receivable arising from the grant of trade credit or prepayments or similar transactions entered into in the ordinary course of business to employees of and investments by the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Restricted Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) satisfaction or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party partial satisfaction thereof from financially troubled account debtors to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposesprevent or limit financial loss; and
(jl) Investmentsto the extent not prohibited by Law, loans and advances to the officers, directors and employees of the General Partner, the Borrower and its Subsidiaries made from time to time in addition to Investments permitted under clauses (a) through (h) the ordinary course of this Section 6.05, but including Investments permitted under Section 6.04(b), made after business; provided that the date hereof in an aggregate amount of loans permitted by this clause (l) shall not to exceed $500,000,000 in any Person or Persons2,000,000 at anytime outstanding.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower Guarantor will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary Guarantor in the capital stock of its Subsidiaries;
(cb) loans or advances made by the Parent Borrower to, Guarantor to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower Guarantor or any other Subsidiary;
(dc) Guarantees constituting Indebtedness permitted by Section 6.01;
(ed) advances or loans made subject to the provisions of this Section 6.04(d) and the requirements contained in the ordinary course definition of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, the Guarantor and its Wholly-Owned Subsidiaries may from time to time effect Permitted Acquisitions, so long as: (i) a new Domestic Subsidiary no Default shall have occurred and be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 continuing at the time of the Code consummation of Federal Regulations) the proposed Permitted Acquisition or immediately after giving effect thereto; and (ii) any then existing Domestic Subsidiary if the proposed Permitted Acquisition is for aggregate consideration of $50,000,000 or more, the Guarantor shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party have given to the Guarantee Agreement 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 a 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 Guarantor is in accordance compliance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposesSections 6.09, 6.10 and 6.11 hereof; and
(je) Investments, in addition other investments made pursuant to Investments permitted under clauses (a) through (h) investment guidelines approved by Guarantor’s board of this Section 6.05, but including Investments permitted under Section 6.04(b), made after directors from time to time and which otherwise comply with applicable insurance law or regulation and any applicable guidelines established by the date hereof in an aggregate amount not NAIC from time to exceed $500,000,000 in any Person or Personstime.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly Owned Subsidiary prior to such merger) any capital stock, Capital Stock of or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliates(collectively, “Investments”), except:
(a) Permitted Investments;
(b) investments by Investments existing on the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesAmendment/Restatement Effective Date and set forth on Schedule 6.5;
(c) loans or advances intercompany Investments made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by its Subsidiaries in any Subsidiary to(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 aggregate amount of outstanding Investments by Loan Parties 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 10% 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) loans and Guarantees by any Subsidiary advances to employees of obligations of, the Parent Borrower or any other SubsidiarySubsidiary in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for the Parent Borrower and its Subsidiaries not to exceed $20,000,000 at any one time outstanding;
(de) Guarantees constituting Indebtedness permitted by Section 6.016.2; provided that (i) a Subsidiary shall not Guarantee the Senior Notes, any Subordinated Debt, the XXXXx or any Other Permitted Debt unless (A) such 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 provides for the release and termination thereof, without action by any party, upon Disposition of the relevant Subsidiary, (ii) the aggregate principal amount of Indebtedness of Subsidiaries that are not Wholly Owned Subsidiary Guarantors that is Guaranteed by any Loan Party shall be subject to the limitation set forth in paragraph (c) above 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;
(ef) advances or loans made in the ordinary course of business to employees of Permitted Acquisitions;
(g) Guarantees not constituting Indebtedness by the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with Subsidiaries of the bona fide settlement Contractual Obligations of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitionsintercompany Investments in any Wholly Owned Subsidiary created by the Parent Borrower or any of its Subsidiaries in connection with any corporate restructuring; provided that if, as a result of a Permitted Acquisition, (i) such newly-created Subsidiary is, or contemporaneously with the consummation of such restructuring becomes, a new Domestic Wholly Owned Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-XGuarantor, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) all property transferred to such newly-created Subsidiary that constituted Collateral shall continue to constitute Collateral as to which the Collateral Agent has a first priority perfected security interest, subject to Permitted Encumbrances, and (iii) contemporaneously with the consummation of such restructuring (A) the Capital Stock and assets of such newly-created Subsidiary are pledged under the relevant Security Documents (except to the extent that any then existing Domestic 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 shall become such a Significant Subsidiaryto take, such Domestic Subsidiary actions as shall thereafter become party be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in Section 5.12, all at the Guarantee Agreement as a Guarantor in accordance with Section 5.09expense of the Loan Parties;
(i) Swap Agreements Investments in the Xxxxxxx XX as at May 24, 2001 and (ii) additional Investments in the Xxxxxxx XX in an aggregate amount from May 24, 2001 through and including the date of such Investment not entered into to exceed $75,000,000;
(j) Investments financed with 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 speculative purposeswhich 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); and
(jl) Investments, in addition to Investments that are not permitted under clauses (a) through (h) by any other paragraph of this Section 6.05Section, but including Investments permitted under Section 6.04(b)so long as, made after giving effect to any such Investment, the date hereof in an aggregate amount of Investments (valued at cost) at any one time outstanding shall not to exceed $500,000,000 in any Person or Persons150,000,000.
Appears in 1 contract
Samples: Credit Agreement (SPX Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesPermitted Acquisitions;
(c) loans or advances made by the Parent Borrower to, in or to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary toto the Borrower; provided that not more than $5,000,000 in such loans or advances may be made and remain outstanding, and Guarantees during the term of this Agreement, by any Loan Party to a Subsidiary of obligations of, the Parent Borrower or any other Subsidiarywhich is not a Loan Party;
(d) (i) investments by the Borrower and the Subsidiaries in Equity Interests in their respective Subsidiaries and (ii) investments by any Foreign Subsidiary in any other Foreign Subsidiary; provided that, with respect to clause (i) of this Section 6.04(d), the amount of such investments by the Borrower and the Subsidiary Guarantors in Foreign Subsidiaries and other non-Loan Parties, when taken together with Guarantees by the Borrower and the Subsidiary Guarantors of Indebtedness owing by Foreign Subsidiaries and other non-Loan Parties, shall not be more than $10,000,000 in the aggregate at any time;
(e) Guarantees constituting Indebtedness permitted by Section 6.01; provided that the amount of such Guarantees of Indebtedness of Foreign Subsidiaries and other non-Loan Parties by the Borrower and the Subsidiary Guarantors, when taken together with investments by the Borrower and the Subsidiary Guarantors in Equity Interests in their respective Subsidiaries that are Foreign Subsidiaries or other non-Loan Parties, shall not be more than $10,000,000 in the aggregate at any time;
(ef) investments of any Person that becomes a Subsidiary after the date hereof; provided that (i) such investments existed at the time such Person became a Subsidiary, (ii) such investments are not made in contemplation of or in connection with such Person becoming a Subsidiary, and (iii) the aggregate amount of investments permitted under this clause (f) shall not exceed $5,000,000 at any time;
(g) promissory notes and other non-cash consideration received by the Borrower or any of its Subsidiaries in connection with any asset sale permitted by clause (iv) of Section 6.03(a);
(h) Swap Agreements entered into by the Borrower or any of its Subsidiaries to the extent permitted by Section 6.05;
(i) any investments, loans or advances or loans made existing on the date hereof as set forth on Schedule 6.04;
(j) bank deposits in the ordinary course of business to employees of the Parent Borrower and its Subsidiariesbusiness;
(fk) existing Investments not otherwise permitted under this Agreement and described investments in Schedule 6.05 hereto;
(g) Investments received in connection with securities of account debtors of the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result Subsidiary received pursuant to any plan of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and reorganization or similar arrangement upon the bankruptcy or insolvency of such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposesaccount debtors; and
(jl) Investmentsany other investment, in addition to Investments permitted under clauses loan or advance (aother than acquisitions) through (h) made by Domestic Subsidiaries so long as the aggregate amount of all such investments, loans and advances does not exceed $10,000,000 during the term of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or PersonsAgreement.
Appears in 1 contract
Samples: Credit Agreement (Innerworkings Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Neither Holdings nor the Borrower will, nor will not, and will not Holdings permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Subsidiary prior to such merger) any capital stockEquity Interests (but specifically excluding (x) Holdings’s right to acquire and hold additional Equity Interests in (including, for this purpose, to the extent not otherwise falling within the definition of “Equity Interests”, any trust preferred securities of) the Revolving Borrower and (y) redemptions or other repurchases by the Revolving Borrower or Holdings of any such Equity Interests in accordance with the provisions of Sections 4.2(e) and 7.4(d) of the LLC Agreement) 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 or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesPermitted Acquisitions;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) 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 by Holdings in Equity Interests of the Revolving Borrower, by the Borrower or any other Loan Party (other than Holdings) in Equity Interests of a Subsidiary Loan Party or any direct or indirect wholly owned Subsidiary of any Loan Party and (ii) loans or advances made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other SubsidiaryLoan Party (other than Holdings) to any Subsidiary Loan Party or any direct or indirect wholly owned Subsidiary of any Loan Party and (iii) any contribution of assets from a Loan Party or a wholly owned direct or indirect Subsidiary of a Loan Party to another Loan Party or wholly owned direct or indirect Subsidiary of a Loan Party;
(df) Guarantees constituting Indebtedness investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) investments in the form of Swap Agreements permitted by Section 6.016.07;
(eh) advances investments of any Person existing at the time such Person becomes a Subsidiary or loans consolidates or merges with the Borrower or any Subsidiary (including in connection with a Permitted Acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger;
(i) investments resulting from pledges or deposits described in clause (c) or (d) of the definition of the term “Permitted Encumbrance”;
(j) investments received in connection with the disposition of any asset permitted by Section 6.05;
(k) receivables or other trade payables owing to the Borrower or a Subsidiary if created or acquired in the ordinary course of business to employees of and payable or dischargeable in accordance with customary trade terms, provided that such trade terms may include such concessionary trade terms as the Parent Borrower and its Subsidiariesor any Subsidiary deems reasonable under the circumstances;
(fl) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with investments by the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; a Subsidiary in Equity Interests in joint ventures the primary business of which are businesses of the type conducted by the Borrower and the Subsidiaries on the Effective Date and businesses reasonably related thereto, provided that if, as a result of a Permitted Acquisitionimmediately after giving effect to such investment, (i) a new Domestic the Borrower or such Subsidiary shall be created and will own Equity Interests in such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 joint venture representing at least 50% of the Code aggregate equity value represented by the issued and outstanding Equity Interests in such joint venture, (ii) the Borrower or a Subsidiary will manage or otherwise be responsible for the day-to-day operations of Federal Regulationssuch joint venture pursuant to a customary management contract (or will have been designated to act in such capacity upon project completion) or will have influence over such day-to-day operations by virtue of a franchise arrangement (or will have been designated to have such influence upon project completion) or (iiiii) any then existing Domestic the Borrower or a Subsidiary shall become will be the managing member or day-to-day administrative member of such a Significant Subsidiaryjoint venture, or will have approval rights over major decisions with respect to such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09joint venture;
(im) Swap Agreements 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) and without giving effect to any write-downs or write-offs thereof, that at the time of, and after giving effect to, the making thereof would not entered into exceed 25% of Total Assets as of the end of the fiscal quarter immediately prior to the date of such investment for speculative purposeswhich financial statements have been delivered pursuant to Section 5.01;
(n) repurchases by either of Holdings or the Revolving Borrower of common Equity Interests previously issued by such entity, subject to an aggregate limit of not more than 5% of the outstanding shares of common stock or common membership interests, as applicable; and
(jo) Investments, in addition to Investments any Guarantees and/or indemnities permitted under clauses (a) through (h) of this by Section 6.05, but including Investments permitted under Section 6.04(b6.01(a)(xiv), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Each of the Parent Guarantor and the Borrower will not, and will not permit any of its their respective Subsidiaries to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly Owned Subsidiary of the Borrower prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or provide other credit support for any Person or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or (each of the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesforegoing, an “Investment” and collectively, “Investments”), except:
(ai) Permitted Investments;
(bii) investments Investments existing on the Closing Date (or in respect of which a binding commitment to make such Investment existed on the Closing Date) and set forth on Schedule 8.04;
(iii) Investments (x) by the Parent Guarantor in the Borrower and by the Borrower and the Subsidiaries of the Borrower in the Borrower or a Subsidiary in the capital stock of its Subsidiaries;
(c) loans or advances made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, Loan Parties; provided that any such Investment held by a Loan Party shall be pledged pursuant to the Pledge and Guarantees Security Agreement and (y) by any Subsidiary of obligations of, the Parent Borrower or that is not a Subsidiary Loan Party in any other SubsidiarySubsidiary of the Borrower that is not a Subsidiary Loan Party;
(div) Investments permitted by Section 8.01(a)(vii);
(v) Guarantees constituting Indebtedness permitted by Section 6.018.01(a)(iv);
(e) advances or loans made in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(gvi) Investments received in connection with the bona fide bankruptcy or reorganization of, or settlement of any defaulted Indebtedness or other liability owed to delinquent accounts and disputes with, customers and suppliers, in each case in the Parent Borrower or any Subsidiaryordinary course of business;
(hvii) Permitted Acquisitions; provided that ifloans and advances to employees, officers and directors of the Parent Guarantor or its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) not to exceed $10,000,000 in the aggregate at any time outstanding;
(viii) loans and advances to employees, officers and directors of Parent Guarantor or any of its Subsidiaries to the extent used to acquire Equity Interests of Parent Guarantor to the extent such transactions are cashless;
(ix) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 the operations of the Code business in the ordinary course of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09business;
(ix) Swap Agreements not entered into for speculative purposes; and
(j) Investments, Investments in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof Non-Guarantor Subsidiaries and Foreign Subsidiaries in an aggregate amount not to exceed $500,000,000 350,000,000 net of the aggregate amount of cash paid as dividends or return of capital investment on such Investment at any time outstanding;
(xi) Permitted Acquisitions;
(xii) Investments in respect of bonds owned by the Borrower or any Person Subsidiary Loan Party as described in clause (f) of the definition of “Permitted Kansas Bond Financing”; provided that Permitted Kansas Bond Financing is permitted by Section 8.01(a)(xiv);
(xiii) Investments in respect of industrial revenue bonds owned by the Borrower or Personsa Subsidiary Loan Party in connection with a Permitted IRB Lease Obligations; provided that Permitted IRB Lease Obligations is permitted by Section 8.01(a)(xv);
(xiv) other Investments of a type not contemplated by the other clauses of this Section 8.04 by the Borrower or any Subsidiary Loan Party not to exceed $75,000,000 net of the aggregate amount of cash paid as dividends or return of capital investment on such Investment in the aggregate at any time outstanding; and
(xv) so long as no Default shall have occurred and be continuing or would result therefrom, Investments in Joint Ventures not to exceed $125,000,000 net of the aggregate amount of cash paid as dividends or return of capital investment on such Investment in the aggregate at any time outstanding. For purposes of this Section 8.04, in the event that an Investment is listed on Schedule 8.04 and meets the criteria of more than one of the other categories of Investments permitted under this Section 8.04, such Investment as listed on Schedule 8.04 shall not be included in determining compliance with the other categories of permitted Investments.
Appears in 1 contract
Samples: Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any capital contributions or any loans or advances to, enter into or permit to exist any Guarantee any of the obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all the foregoing being called “investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesEffective Date and set forth on Schedule 6.04;
(c) investments by the Borrower and its Subsidiaries in Equity Interests in their respective Subsidiaries and the SPE; provided that any such Equity Interests (other than those of the SPE) held by the Borrower shall be pledged pursuant to the Collateral Agreement (subject to the limitations applicable to Equity Interests of a Foreign Subsidiary referred to in Section 5.12);
(d) loans or advances made by the Parent Borrower to, to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary; provided that any such loans and advances made by the Borrower shall be evidenced by a promissory note (which may be in the form of a grid note) pledged pursuant to the Collateral Agreement;
(de) Guarantees constituting Indebtedness permitted by Section 6.01; provided that no Subsidiary shall Guarantee the Convertible Notes or any other Material Indebtedness of the Borrower;
(ef) advances investments received in connection with the bankruptcy or loans reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) the acquisition of all or substantially all the assets of a Person or line of business of such Person, or not less than 100% of the Equity Interests (except for directors’ qualifying shares) of a Person (referred to herein as the “Acquired Entity”); provided that (i) such acquisition was not preceded by an unsolicited tender offer for such Equity Interests by, or proxy contest initiated by, the Borrower or any Subsidiary; (ii) after giving effect to the acquisition the Borrower shall be in compliance with Section 6.03(b); (iii) the Acquired Entity is located, and substantially all of its operations are conducted, in the United States of America; (iv) both before and after giving effect to such acquisition no Default or Event of Default shall have occurred and be continuing; (v) after giving effect to such acquisition (A) the Borrower would be in Pro Forma Compliance and (B) there shall be at least $30,000,000 of unused and available Commitments; (vi) the total cash and non-cash consideration paid in connection with such acquisition and any other acquisitions pursuant to this Section 6.04(g) (including the fair market value of all Equity Interests of the Borrower or any Subsidiary issued or transferred to the seller or sellers in any such acquisition, any Indebtedness of the Acquired Entity that is assumed, refinanced or repaid by the Borrower or any Subsidiary in connection with or following such acquisition) shall not exceed (A) $75,000,000 in any fiscal year or (B) $150,000,000 in the aggregate; and (vii) the Borrower shall comply with the applicable provisions of Sections 5.12 and 5.13 and the Security Documents (any acquisition of an Acquired Entity meeting all the criteria of this Section 6.04(g) being referred to herein as a “Permitted Acquisition”);
(h) deposits, prepayments and other credits to suppliers, lessors and landlords made in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09business;
(i) Swap Agreements not entered into advances by the Borrower or any Subsidiary to employees for speculative purposesmoving and travel expenses and similar expenses in the ordinary course of business;
(j) the Borrower and its Subsidiaries may acquire and hold promissory notes and/or Equity Interests issued by the purchaser or purchasers in connection with the sale of assets to the extent permitted under Section 6.05 (provided that any such promissory note issued to the Borrower in an amount in excess of $250,000 shall be pledged pursuant to the Collateral Agreement); and
(jk) Investments, in addition to Investments permitted under clauses (a) through (h) the Borrower and its Subsidiaries may acquire individual retail store locations and leases. For the purposes of this Section 6.05Section, but including Investments permitted under Section 6.04(b), made after any unreimbursed payment by the date hereof Borrower for goods or services delivered to a Subsidiary shall be deemed to be an investment in an aggregate amount not to exceed $500,000,000 in any Person or Personssuch Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Dress Barn Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and 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 Subsidiary prior to such merger) any capital stockEquity, evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness or other obligation of, or make or permit to exist any investment or any other interest in, any other PersonPerson (other than securities exercisable or convertible into, or exchangeable for, the Equity of the Borrower and each Subsidiary), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in Subsidiaries existing on the capital stock of its SubsidiariesEffective Date and investments by such Restricted Subsidiaries in their respective Subsidiaries existing on the Effective Date;
(c) loans or advances made by the Parent Borrower to, to any Restricted Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Restricted Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Restricted Subsidiary;
(d) Guarantees constituting by the Borrower of Indebtedness and other obligations of any Restricted Subsidiary and by any Subsidiary of Indebtedness and other obligations of the Borrower or any other Subsidiary (including pursuant to the Subsidiary Guaranties) and any other Guarantees permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Parent Borrower and its SubsidiariesPermitted Acquisitions;
(f) existing Investments not otherwise Hedging Agreements permitted under this Agreement and described in Schedule 6.05 hereto;by Section 6.05; and
(g) Investments received in connection with addition to investments permitted by the bona fide settlement foregoing clauses of this Section 6.04, any other investments (including any performance Guarantee of the obligations of any defaulted Indebtedness or other liability owed Unrestricted Subsidiary but expressly excluding any repurchase of the Equity of the Borrower) as long as at the time of and immediately after giving effect to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisitionsuch investment, (i) a new Domestic Subsidiary shall be created no Default has occurred and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) continuing or would result and (ii) any the Leverage Ratio (as calculated pursuant to clause (b) of the definition thereof), on a pro forma basis, is less than 2.75 to 1.00; provided that in the event that the Leverage Ratio (as so calculated) is equal to or greater than 2.75 to 1.00 at the time an investment is made, then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee aggregate amount measured at cost of the investments made under this Section 6.04(g) during the entire term of this Agreement (including the investment in question) may not exceed the greater of (A) $50,000,000 or (B) 2.5% of the Borrower’s consolidated current assets as a Guarantor determined in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, GAAP as reflected in addition the then-most recent financial statements provided by the Borrower at the time an investment is made pursuant to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b6.04(g), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and 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 capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Parent Borrower or a Subsidiary in Effective Date and set forth on Schedule 6.04 to the capital stock of its SubsidiariesDisclosure Letter;
(c) investments by the Borrower and the Restricted Subsidiaries in Equity Interests in Borrower or any Restricted Subsidiary and investments by Unrestricted Subsidiaries in Equity Interests of Borrower or any Restricted Subsidiary;
(d) loans or advances made by the Parent Borrower to, or any Restricted Subsidiary to Borrower or any Restricted Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Unrestricted Subsidiary to, and Guarantees by any Subsidiary of obligations ofto Holdings, the Parent Borrower or any other Restricted Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances Guarantees of Indebtedness permitted under Section 6.01 and Guarantees of Permitted Convertible Notes made in compliance with the definition of Permitted Convertible Notes;
(f) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) Permitted Acquisitions;
(h) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.03 or 6.05;
(i) Guarantees and indemnities by the Borrower and the Restricted Subsidiaries of leases and other agreements entered into by any Restricted Subsidiary;
(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 to employees of consistent with prudent business practice and not exceeding $10,000,000 in the Parent Borrower and its Subsidiariesaggregate outstanding at any one time;
(fm) existing Investments not otherwise permitted under this Agreement investments in or acquisitions of stock, obligations or securities received in settlement of debts created in the ordinary course of business and described owing to the Borrower or any Restricted Subsidiary or in Schedule 6.05 heretosatisfaction of judgments;
(gn) Investments received investments in connection with the bona fide settlement form of any defaulted Indebtedness or other liability owed to Swap Agreements permitted under Section 6.06;
(o) investments, loans, advances, guarantees and acquisitions resulting from a foreclosure by the Parent Borrower or any SubsidiaryRestricted Subsidiary with respect to any secured investment or other transfer of title with respect to any secured investment in default;
(hp) Permitted Acquisitionsinvestments, loans, advances, guarantees and acquisitions the consideration for which consists solely of shares of common stock of Holdings;
(q) the licensing from other Persons by the Borrower and the Restricted Subsidiaries of intellectual property in accordance with normal industry practice; provided that if, as a result if such licensing involves the effective acquisition of a Permitted Acquisition, (i) a new Domestic Subsidiary shall any business of another Person it must be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with otherwise permitted by this Section 5.096.04;
(ir) Swap Agreements exchanges of Permitted Convertible Notes, whether or not entered into for speculative purposespursuant to such Permitted Convertible Notes;
(s) contributions of Permitted Receivables Facility Assets and cash deemed received from proceeds of Permitted Receivables Facility Assets to any Receivables Entity to the extent required or made pursuant to Permitted Receivables Facility Documents or to the extent necessary to keep such Receivables Entity properly capitalized to avoid insolvency or consolidation with a Loan Party or any of the Subsidiaries; and
(jt) Investmentsany other investment, in addition to Investments permitted under clauses loan or advance (aother than acquisitions) through (h) so long as the aggregate amount of all such investments, loans and advances does not exceed $50,000,000 during the term of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or PersonsAgreement.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such mergermerger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license (each such action being referred to such licensee from the Parent Borrower or any of its Affiliatesherein as an “Investment”), except:
(a) Permitted Investments;
(b) investments Permitted Acquisitions;
(c) Investments by the Parent Borrower or a Subsidiary and its Subsidiaries existing on the date hereof in the capital stock of its Subsidiaries;
(cd) loans or advances Investments made by the Parent Borrower to, in or to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, in or to the Parent Borrower or any other SubsidiarySubsidiary (provided that not more than an aggregate amount of $10,000,000 in Investments may be outstanding, at any time, by Loan Parties to Subsidiaries which are not Loan Parties);
(de) Guarantees constituting Indebtedness permitted by Section 6.016.01 and Guarantees of obligations in respect of Permitted Acquisitions;
(ef) advances the Borrower and its Subsidiaries may enter into Sale and Leaseback Transactions permitted by Section 6.10;
(g) Investments constituting installment sales of equipment;
(h) Investments in securities of trade creditors or loans made customers in the ordinary course of business to employees of and consistent with the Parent Borrower and its Borrower’s or such Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments ’ past practices that are received in connection with the settlement of bona fide settlement disputes or pursuant to any plan of any defaulted Indebtedness reorganization or other liability owed to liquidation or similar arrangement upon the Parent Borrower bankruptcy or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result insolvency of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) trade creditors or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09customers;
(i) Investments consisting of licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(j) Investments consisting of promissory notes and other non-consideration received in connection with any asset sale permitted by Section 6.03;
(k) Investments in connection with the purchase, cancellation, or repayment of any existing industrial revenue bonds or industrial revenue bonds acquired in a Permitted Acquisition;
(l) Investments consisting of Swap Agreements not entered into for speculative purposespermitted by Section 6.05; and
(jm) Investmentsany other Investment (other than acquisitions) so long as the aggregate amount of all such Investments does not exceed $10,000,000 outstanding at any time; provided that such Dollar limitation shall not be applicable if at the time of the making of such Investment and immediately after giving effect (including giving effect on a pro forma basis) thereto, in addition (i) the Leverage Ratio is equal to Investments permitted under clauses or less than (aA) through (hx) of this Section 6.05, but including Investments the maximum ratio permitted under Section 6.04(b6.12(a) during such fiscal quarter, minus (y) 0.50 to (B) 1.00 and (ii) the Borrower shall have Liquidity equal to or greater than $50,000,000), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons.
Appears in 1 contract
Samples: Credit Agreement (Angiodynamics Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Each of the Parent Guarantor and the Borrower will not, and will not permit any of its their respective Subsidiaries to, purchasedirectly or indirectly, hold purchase or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly Owned Subsidiary of the Borrower prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or provide other credit support for any Person or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or (each of the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesforegoing, an “Investment” and collectively, “Investments”), except:
(a) Permitted Investments;
(b) investments by Investments existing on the Parent Borrower Effectiveness Date (or in respect of which a Subsidiary in binding commitment to make such Investment existed on the capital stock of its SubsidiariesEffectiveness Date) and set forth on Schedule 8.04;
(c) loans or advances made Investments (i) by the Parent Borrower to, and Guarantees by Guarantor in any Subsidiary of the Parent Borrower of obligations of, any Subsidiary, Guarantor and loans or advances made by any Subsidiary to, and Guarantees (ii) by any Subsidiary of obligations of, the Parent Borrower Guarantor in the Parent Guarantor or any other SubsidiarySubsidiary of the Parent Guarantor;
(d) Guarantees Investments constituting Indebtedness permitted of the Loan Parties and their Subsidiaries that is not prohibited by Section 6.018.02;
(e) advances or loans made in the ordinary course of business to employees Guarantees constituting Indebtedness of the Parent Borrower Loan Parties and its Subsidiariestheir Subsidiaries that is not prohibited by Section 8.02;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide bankruptcy or reorganization of, or settlement of any defaulted Indebtedness or other liability owed delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) loans and advances to employees, officers and directors of the Parent Borrower Guarantor or its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) not to exceed $10,000,000 in the aggregate at any Subsidiarytime outstanding;
(h) Permitted Acquisitions; provided that ifloans and advances to employees, as a result officers and directors of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 Parent Guarantor or any of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party its Subsidiaries to the Guarantee Agreement as a Guarantor in accordance with Section 5.09extent used to acquire Equity Interests of Parent Guarantor;
(i) Swap Agreements not Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into for speculative purposesas a result of the operations of the business in the ordinary course of business;
(j) Investments that are Permitted Acquisitions;
(k) Investments in respect of obligations under Permitted Incentive Programs;
(l) Investments made in connection with the North Hangar Lease; and
(jm) Investmentsother Investments so long as the Borrower and its Subsidiaries are in compliance with all Financial Covenants on a Pro Forma Basis after giving effect to such Investment. For purposes of this Section 8.04, in addition to the event that an Investment is listed on Schedule 8.04 and meets the criteria of more than one of the other categories of Investments permitted under clauses (a) through (h) this Section 8.04, such Investment as listed on Schedule 8.04 shall not be included in determining compliance with the other categories of permitted Investments. For purposes of determining compliance at any time with this Section 8.04, in the event that any Investment meets the criteria of more than one of the categories of transactions or items permitted pursuant to any clause of this Section 6.058.04, but including Investments permitted the Borrower, in its sole discretion, may, from time to time, classify or reclassify such transaction or item (or portion thereof) under one or more clauses of such Section 6.04(b), made after and will only be required to include the date hereof in an aggregate amount not to exceed $500,000,000 and type of such transaction (or portion thereof) in any Person or Personsone category.
Appears in 1 contract
Samples: Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned (other than directors’ qualifying shares as required by law or shares held by nominees on behalf of the Borrower or any Subsidiary as required by law) Subsidiary prior to such mergermerger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliates(each, an “Investment”), except:
(a) Investments constituting Permitted InvestmentsInvestments at the time made and Investments existing as of the Restatement Effective Date and set forth in Schedule 6.04 to the Disclosure Letter and any Investments to be made pursuant to existing written commitments and set forth in Schedule 6.04 to the Disclosure Letter;
(b) Permitted Acquisitions, including the formation of any Subsidiary in connection with such Permitted Acquisition and the capitalization of such Subsidiary whether by capital contribution or intercompany loans;
(c) investments by the Parent Borrower or a Subsidiary and its Subsidiaries existing on the Restatement Effective Date in the capital stock Equity Interests of its Subsidiaries;
(cd) investments, loans or advances made by the Parent Borrower to, in or to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, in or to the Parent Borrower or any other SubsidiarySubsidiary (provided that not more than an aggregate amount equal to 10% of the Borrower’s Consolidated Total Assets (determined as of the most recently ended fiscal quarter of the Borrower prior to each investment, loan or advance made pursuant to this clause (d), with such determination to remain in effect until the next such investment, loan or advance) in investments, loans or advances or capital contributions may be made and remain outstanding, at any time, by Loan Parties to Subsidiaries which are not Loan Parties);
(de) Guarantees constituting Indebtedness permitted by Section 6.016.01 and Guarantees of obligations not constituting Indebtedness;
(ef) 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;
(g) Investments arising out of the receipt of non-cash consideration for any disposition permitted by Section 6.03 and any Investments that consist of or result from any merger or consolidation permitted by Section 6.03;
(h) advances or loans to officers, directors and employees of the Borrower and Subsidiaries made in the ordinary course of business to employees of the Parent Borrower and its Subsidiariessubstantially consistent with past practice for travel, entertainment, relocation, commission advances and analogous ordinary business purposes;
(fi) existing Investments not otherwise arising under any Swap Agreement permitted under this Agreement and described in Schedule 6.05 heretopursuant to Section 6.05;
(gj) to the extent constituting Investments, pledges and deposits permitted pursuant to clauses (c) and (d) of the definition of Permitted Encumbrances;
(k) Investments of any Person that becomes a Subsidiary after the Restatement Effective Date, provided that (i) such Investments exist at the time that such Person becomes a Subsidiary and (ii) such Investments were not made in anticipation of such Person becoming a Subsidiary;
(l) Investments received in connection with the bona fide settlement of any defaulted Indebtedness a sale, transfer or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with disposition permitted by Section 5.09;
(i) Swap Agreements not entered into for speculative purposes6.03(a)(xv); and
(jm) Investmentsany other investment, in addition loan or advance (other than acquisitions) so long as the aggregate outstanding amount of all such investments, loans and advances does not exceed 10% of the Borrower’s Consolidated Total Assets (determined as of the most recently ended fiscal quarter of the Borrower prior to Investments permitted under clauses each investment, loan or advance made pursuant to this clause (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(bm), made after which such determination to remain in effect until the date hereof in an aggregate amount not to exceed $500,000,000 in any Person next such investment, loan or Personsadvance).
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower and the Company will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger or amalgamation with any Person that was not a wholly owned Subsidiary prior to such mergermerger or amalgamation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee 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 or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Parent Parent, the Company, any Domestic Subsidiary or any Subsidiary Guarantor in the Parent, the Borrower or a any such Domestic Subsidiary or Subsidiary Guarantor;
(c) additional purchases of or investments by the Parent, the Company or any Subsidiary in the capital stock of its Subsidiaries;
(c) loans , including Foreign Subsidiaries, joint ventures or advances made by the Parent Borrower tocapital stock, and Guarantees by the Parent Borrower assets, obligations or other securities of obligations of, any Subsidiaryor interests in other Persons, and loans and advances by the Parent, the Company or advances made by any Subsidiary toCredit Party to or in favor of, and Guarantees guarantees by the Parent, the Company or any Subsidiary of the obligations (including, without limitation, Indebtedness, obligations under Hedge Agreements and credit card and related obligations) of, Foreign Subsidiaries, in an amount in the Parent Borrower or aggregate at any other Subsidiarytime outstanding which does not exceed 25% of Consolidated Tangible Assets;
(d) Guarantees constituting Guarantee Obligations or Indebtedness of any Domestic Credit Party permitted by Section 6.017.01, Guarantee Obligations of any Domestic Credit Party guaranteeing the obligations of any Domestic Credit Party under a Hedge Agreement permitted by Section 7.05 and Guarantees of Indebtedness of Foreign Subsidiaries permitted by Section 7.01(i);
(e) loans and advances to officers and directors of any Credit Party (or employees thereof provided such loans made and advances are approved by an officer of a Credit Party) for travel, entertainment and relocation expenses in the ordinary course of business to employees of the Parent Borrower and its Subsidiariesin an aggregate principal amount outstanding at any time that shall not exceed $1,000,000;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;Permitted Acquisitions; and
(g) Investments received in connection with the bona fide settlement investments of any defaulted Indebtedness or other liability owed funds intended to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof fund deferred compensation liabilities in an aggregate amount not to exceed $500,000,000 in 100,000,000 at any Person time outstanding, provided that such investments are made pursuant to the Investment Policy and continue at all times to be assets of the Parent, the Company or Personsanother Credit Party subject to the claims of its general creditors; and
(h) guarantees by the Parent and the Company or any Subsidiary of the rental obligations of Foreign Subsidiaries to the extent such rental obligations do not constitute Indebtedness.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary (other than directors’ qualifying shares as required by law or shares held by nominees on behalf of the Borrower or any Subsidiary as required by law) prior to such mergermerger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliates(each, an “Investment”), except:
(a) Investments constituting Permitted InvestmentsInvestments at the time made and Investments existing as of the date hereof and set forth in Schedule 6.05 to the Disclosure Letter and Investments to be made pursuant to written commitments set forth on Schedule 6.05 to the Disclosure Letter;
(b) investments Investments by the Parent Borrower or a Subsidiary and its Subsidiaries existing on the date hereof in the capital stock Equity Interests of its Subsidiaries;
(c) loans or advances made by the Parent Borrower to, and (i) Guarantees by the Parent Borrower of obligations ofany Indebtedness, any Subsidiary, and loans or advances made by any Subsidiary to, and (ii) Guarantees by any Subsidiary of obligations of, constituting Indebtedness permitted by Section 6.01 and (iii) Guarantees by the Parent Borrower or any other SubsidiarySubsidiary of obligations of the Borrower or any Subsidiary not constituting Indebtedness;
(d) Guarantees constituting Indebtedness permitted by Section 6.01Investments 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;
(e) Investments arising out of the receipt of non-cash consideration for any disposition permitted by Section 6.04 or any other disposition not prohibited by this Agreement;
(f) advances or loans to officers, directors and employees of the Borrower and Subsidiaries made in the ordinary course of business to employees of the Parent Borrower for travel, entertainment, relocation, commission advances and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 heretoanalogous ordinary business purposes;
(g) Investments received in connection with the bona fide settlement of arising under any defaulted Indebtedness or other liability owed Swap Agreement permitted pursuant to the Parent Borrower or any SubsidiarySection 6.06;
(h) to the extent constituting Investments, pledges and deposits permitted pursuant to clauses (c) and (d) of the definition of Permitted Acquisitions; provided that if, as a result of a Permitted AcquisitionEncumbrances or clauses (j), (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulationsk) or (iim) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with of Section 5.096.02;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition Investments arising under any Structured Repurchase that is permitted pursuant to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b6.08(h), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons.;
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesotherwise), except:
(a) investments described in clauses (a) though (e) of the definition of Permitted Investments, subject to control agreements in favor of the Administrative Agent or otherwise subject to a perfected security interest in favor of the Administrative Agent;
(b) investments by in existence on the Parent Borrower or a Subsidiary date of this Agreement and described in the capital stock of its SubsidiariesSchedule 7.04(b);
(c) investments by Holdings in the S&W Corp. and Xxxxxxxx Holding, and by S&W Corp. and Xxxxxxxx Holding in Equity Interests in their respective Subsidiaries other than in Xxxxx & Wesson, Inc., Xxxxx & Wesson Distributing Inc. and Xxxxx & Wesson Firearms Training Centre GmbH, provided that any such Equity Interests held by a Loan Party in any Subsidiary other than Xxxxx & Wesson Firearms Training Centre GmbH shall be pledged pursuant to this Agreement;
(d) loans or advances made by the Parent any Borrower to, to any Domestic Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by to any Subsidiary of obligations of, the Parent Borrower or any other Domestic Subsidiary;
(de) Guarantees guarantees constituting Indebtedness permitted by Section 6.01;
(e7.01(i) advances or loans made arising by endorsement of items for deposit or collection received in the ordinary course of business to employees of the Parent Borrower and its Subsidiariesbusiness;
(f) existing Investments not otherwise permitted under investments by Holdings in any Subsidiary to the extent required to make a Permitted Acquisition in accordance with the terms of this Agreement and described in Schedule 6.05 heretoAgreement, provided with respect to any Foreign Subsidiary, such Foreign Subsidiary must have the capacity to obtain its own financing without recourse to any Loan Party;
(g) Investments <Intentionally omitted>;
(h) subject to Section 8.02 hereof, 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;
(i) investments in the form of Swap Agreements permitted by Section 7.07;
(j) investments of any Person existing at the time such Person becomes a Subsidiary of the Borrower or consolidates or merges with such 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;
(k) investments received in connection with the bona fide settlement dispositions of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiaryassets permitted by Section 7.05;
(hl) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, investments constituting deposits described in clauses (ic) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 d) of the Code definition of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposesterm “Permitted Encumbrances; and
(jm) Investments, in addition to Investments permitted under clauses investments described on Schedule 7.04 (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(bm), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold purchase or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or (collectively, “Investments”; provided that any loan made by the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any Restricted Subsidiary to any direct or indirect parent company of its Affiliatesthe Borrower in connection with the Amendment No. 3 Transactions shall be deemed to be a Restricted Payment but not an “Investment” for purposes of this Agreement and any Qualified Proceeds or Permitted Investments subsequently received by the Borrower or such Restricted Subsidiary on account of principal or interest on any such loan shall be deemed a contribution to the capital of the Borrower for purposes of the definition of “Available Amount”), except:
(a) Permitted Investments;Acquisitions,
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its Subsidiaries;Permitted Investments,
(c) Investments existing on the Closing Date and set forth on Schedule 6.04 and any Investments consisting of extensions, modifications or renewals of any such Investments (excluding any such extensions, modifications or renewals involving additional advances, contributions or other investments of cash or property or other increases thereof unless it is a result of the accrual or accretion of interest or OID or payment-in-kind pursuant to the terms, as of the Closing Date, of the original Investment so extended, modified or renewed),
(d) Investments by the Borrower or any Restricted Subsidiaries in Equity Interests in their respective Restricted Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Collateral Agreement (subject to the limitations referred to in the definition of “Collateral and Guarantee Requirement”) and (B) the aggregate amount of investments in Non-Loan Parties by Loan Parties (together with outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(e) and outstanding Guarantees permitted to be incurred under clause (B) to the proviso to Section 6.04(f)) shall not exceed the greater of $25,000,000 and 2.5% of Total Assets at any time outstanding (in each case determined without regard to any write-downs or write-offs),
(e) loans or advances made by the Parent Borrower to, to any Restricted Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Restricted Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Restricted Subsidiary;; provided that (A) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Collateral Agreement and (B) the amount of such loans and advances made by Loan Parties to Non-Loan Parties (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(d) and outstanding Guarantees permitted under clause (B) to the proviso to Section 6.04(f)) shall not exceed the greater of $25,000,000 and 2.5% of Total Assets at any time outstanding (in each case determined without regard to any write-downs or write-offs),
(df) Guarantees constituting Indebtedness permitted by Section 6.01;6.01 and performance guarantees in the ordinary course of business; provided that (and without limiting the foregoing) the aggregate principal amount of Indebtedness of Non-Loan Parties that is Guaranteed by any Loan Party (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(d) and outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(e)) shall not exceed the greater of $25,000,000 and 2.5% of Total Assets at any time outstanding (in each case determined without regard to any write-downs or write-offs),
(eg) receivables or other trade payables owing to the Borrower or any Restricted Subsidiary if created or acquired in the ordinary course of business consistent with past practice and payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as the Borrower or any such Restricted Subsidiary deems reasonable under the circumstances,
(h) Investments consisting of Equity Interests, obligations, securities or other property received in settlement of delinquent accounts of and disputes with customers and suppliers in the ordinary course of business and owing to the Borrower or any Restricted Subsidiary or in satisfaction of judgments,
(i) Investments by the Borrower or any Restricted Subsidiary in payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business,
(j) loans or loans advances by the Borrower or any Restricted Subsidiary to employees and other individual service providers made in the ordinary course of business to employees (including travel, entertainment and relocation expenses) of the Parent Borrower and its Subsidiaries;or any Restricted Subsidiary not exceeding $2,500,000 in the aggregate at any time outstanding (determined without regard to any write-downs or write-offs of such loans or advances),
(fk) existing Investments not otherwise in the form of Swap Agreements permitted under this Agreement and described in Schedule 6.05 hereto;by Section 6.07,
(gl) Investments of any Person existing at the time such Person becomes a Restricted Subsidiary of the Borrower or consolidates or merges, in one transaction or a series of transactions, with the 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 Restricted Subsidiary or of such consolidation or merger,
(m) Investments received in connection with the bona fide settlement dispositions of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;assets permitted by Section 6.05,
(hn) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, Investments constituting deposits described in clauses (ic) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 d) of the Code definition of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;term “Permitted Encumbrances”,
(io) Swap Agreements not entered into for speculative purposes; and
Investments in Permitted Joint Ventures (j) Investments, together with the aggregate amount of Investments in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments Permitted Real Estate Joint Ventures permitted under Section 6.04(b6.04(p), made after the date hereof ) in an aggregate amount not to exceed $500,000,000 50,000,000 plus an amount equal to any returns (including dividends, interest, distributions, returns of principal and profits on sale) actually received in cash in respect of any Person such Investments (which amount shall not exceed the amount of such Investment valued at cost at the time such Investment was made),
(p) Investments in Permitted Real Estate Joint Ventures (together with the aggregate amount of Investments in Permitted Joint Ventures permitted under Section 6.04(o)) in an amount not to exceed $50,000,000 plus an amount equal to any returns (including dividends, interest, distributions, returns of principal and profits on sale) 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),
(q) payments, loans, advances to, and investments in, Consolidated Practices in the ordinary course of business and consistent with past practice in satisfaction of their obligations under any management services agreements,
(r) Investments by the Borrower or Personsany Restricted Subsidiary (including Investments in Permitted Joint Ventures and Permitted Acquisitions) 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 the Available Amount immediately prior to the time of the making of any such Investment,
(i) Investments by the Borrower or any Restricted Subsidiary (including Investments in Permitted Joint Ventures) in an amount not to exceed the greater of $50,000,000 and 5.0% of Total Assets and (ii) other Investments; provided that (x) no Event of Default has occurred and is continuing or would result therefrom and (y) immediately after giving effect to such Investment on a Pro Forma Basis, the Total Net Leverage Ratio does not exceed 5.00:1.00,
(t) Investments, loans and advances by the Borrower or any Restricted Subsidiary to any Captive Insurance Subsidiary in an amount equal to (A) the capital required under the applicable laws or regulations of the jurisdiction in which such Captive Insurance Subsidiary is formed or determined by independent actuaries as prudent and necessary capital to operate such Captive Insurance Subsidiary plus (B) any reasonable general corporate and overhead expenses of such Captive Insurance Subsidiary,
(u) any Investment solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Borrower or Holdings (or any other direct or indirect parent company of the Borrower), and
(v) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business. For purposes of covenant compliance, the amount of any Investment outstanding at any time shall be the original cost of such Investment (without adjustment for any increases or decreases in the value of such Investments), reduced by (except in the case of any Investments made using the Available Amount pursuant to Section 6.04(r) and returns which are included in the Available Amount pursuant to the definition thereof) any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by the Borrower or a Restricted Subsidiary in respect of such Investment.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent U.S. Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) make any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its AffiliatesAcquisition, except:
(a) Permitted Investments;
(b) investments by Investments, loans and advances existing on the Parent Borrower or a Subsidiary date hereof and set forth in Schedule 6.04 and extensions, renewals and replacements thereof that do not increase the capital stock of its Subsidiariesoutstanding 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, loans or advances made by (i) the Parent U.S. Borrower toor any Subsidiary to the U.S. Borrower or any Domestic Subsidiary that is a Guarantor, and Guarantees by the Parent Borrower of obligations of, (ii) any Foreign Subsidiary that is not a Guarantor to any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of(iii) during a Release Period, the Parent U.S. Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed Subsidiary to the Parent U.S. Borrower or any Subsidiary;
(he) Permitted Acquisitions; , provided that if, as a result of a Permitted Acquisition, that: (i) a new Domestic Subsidiary shall be created before and such Domestic Subsidiary is a “Significant Subsidiary” after giving pro forma effect thereto (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code end of Federal Regulations) the most recently ended Fiscal Quarter of the U.S. Borrower), no Default exists or would be caused thereby and (ii) any then existing Domestic Subsidiary shall become if such a Significant SubsidiaryAcquisition involves the acquisition of Equity Interests, the consummation of such Domestic Subsidiary shall thereafter become party to Acquisition has been recommended by the Guarantee Agreement as a Guarantor in accordance with Section 5.09Board of Directors and management of the target of such Acquisition;
(f) Guarantees (i) Swap Agreements by the U.S. Borrower or any Subsidiary of Indebtedness of the U.S. Borrower or any Domestic Subsidiary that is a Guarantor, (ii) by any Foreign Subsidiary that is not entered into for speculative purposesa Guarantor of any Indebtedness of any Subsidiary, or (iii) of any of the Obligations; and
(jg) InvestmentsGuarantees, investments, loans or advances not otherwise permitted by this Section 6.04 not in addition to Investments permitted under clauses excess of fifteen percent (a) through (h15%) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after Consolidated Total Assets in the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Personsaggregate.
Appears in 1 contract
Samples: Credit Agreement (Perrigo Co)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness 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 or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments loans and advances by the Parent Borrower or a any Subsidiary in to any Loan Party, and purchases or other acquisitions by any Loan Party of the capital stock of its Subsidiariesany Loan Party;
(c) loans or and advances made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any wholly-owned Domestic Subsidiary to any wholly-owned Foreign Subsidiary and purchases or other acquisitions by the Borrower or any wholly-owned Domestic Subsidiary of the capital stock of any wholly-owned Foreign Subsidiary; provided that both before and after giving effect to any such loan, advance, purchase or acquisition, (x) the Total Adjusted Leverage Ratio would not exceed 2.75 to 1.0 on a pro forma basis and (y) the Borrower and its Subsidiaries on a consolidated basis would have an aggregate amount of cash and unused borrowing availability under the Commitments (to the extent that any such potential borrowing would not cause the Borrower to be in breach of Section 6.10(a) on a pro forma basis) of not less than $75,000,000;
(d) loans and advances by any Foreign Subsidiary to any other Foreign Subsidiary and purchases or other acquisitions by any Foreign Subsidiary of the capital stock of any other Foreign Subsidiary;
(de) Guarantees constituting Indebtedness permitted by clause (d) of Section 6.01;
(ef) advances, loans or Guarantees by the Borrower or any Subsidiary made in connection with the transactions permitted by clause (k) of Section 6.01;
(g) Permitted Acquisitions;
(h) to the extent permitted by Governmental Authorities, loans and advances or loans made by the Borrower and its Subsidiaries to their officers and employees in the ordinary course of business to employees of so long as the Parent Borrower and its Subsidiariesaggregate outstanding principal amount thereof does not exceed $5,000,000 at any time;
(fi) Investments (including debt obligations) received in connection with (i) the bankruptcy or reorganization of suppliers and customers and in good faith settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business and (ii) the disposition of assets permitted under Section 6.03;
(j) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 6.04 hereto;
(gk) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed capital contributions to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof StellaDeck Fashion Limited in an aggregate amount not to exceed $500,000,000 40,000,000 after the Effective Date; and
(l) other investments, loans, advances or Guarantees not to exceed $25,000,000 in the aggregate after the Effective Date so long as both before and after giving effect to any Person or Personssuch transaction, (i) the Borrower would be in compliance with Section 6.10 on a pro forma basis and (ii) the Borrower and its Subsidiaries on a consolidated basis would have an aggregate amount of cash and unused borrowing availability under the Commitments (to the extent that any such potential borrowing would not cause the Borrower to be in breach of Section 6.10(a) on a pro forma basis) of not less than $75,000,000.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee 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 unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its AffiliatesAcquisition, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its Subsidiaries;
(c) loans or advances made by the Parent Borrower to, to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;; and
(e) advances any merger or loans made Acquisition if (i) such merger involves the Borrower, the Borrower shall be the surviving or continuing corporation thereof, (ii) immediately before and after giving effect such merger or acquisition, no Event of Default or Unmatured Default shall exist or shall have occurred and be continuing and the representations and warranties contained in Article III and in the ordinary course of business to employees other Loan Documents shall be true and correct on and as of the Parent date thereof (both before and after such merger or Acquisition is consummated) as if made on the date such merger or acquisition is consummated, (iii) at least 10 Business Days’ prior to the consummation of such merger or acquisition, the Borrower shall have provided to the Administrative Agent a certificate of the Chief Financial Officer or Treasurer of the Borrower (attaching pro forma computations acceptable to the Administrative Agent to demonstrate compliance with all financial covenants hereunder), each stating that such merger or acquisition complies with this Section 6.04(e), all laws and its Subsidiaries;
(f) existing Investments not otherwise permitted regulations and that any other conditions under this Agreement relating to such transaction have been satisfied, and described such certificate shall contain such other information and certifications as requested by the Administrative Agent and be in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed form and substance satisfactory to the Parent Administrative Agent, (iv) at least 10 Business Days’ prior to the consummation of such merger or acquisition, the Borrower shall have delivered all acquisition documents and other agreements and documents relating to such merger or acquisition, and the Administrative Agent shall have completed a satisfactory review thereof and completed such other due diligence satisfactory to the Administrative Agent, (v) the Borrower shall, at least 10 Business Days prior to the consummation of merger or acquisition, provide such other certificates and documents as requested by the Administrative Agent, in form and substance satisfactory to the Administrative Agent, (vi) the target of such merger or Acquisition is in the same line of business as the Borrower or any a Subsidiary;
, and (hvii) Permitted Acquisitions; provided that if, as a result such merger or Acquisition is not opposed by the board of a Permitted Acquisition, directors (ior similar governing body) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) selling person or (ii) any then existing Domestic Subsidiary shall become the person whose equity interests are to be acquired, unless the Administrative Agent consents to such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person merger or PersonsAcquisition.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Restricted Subsidiaries to, (i) purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Wholly Owned Restricted Subsidiary prior to such merger) any capital stockEquity Interest, 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 (ii) purchase or otherwise acquire (in one transaction or a series of transactions) substantially all the assets of any Person or any assets of any other Person constituting a business unit or the unit, division, product line (including rights in respect of any licensee under drug or other pharmaceutical product) or line of business of such Person, or (iii) acquire an Exclusive License of rights to a trademark license to such licensee from the Parent Borrower drug or other product line of any of its AffiliatesPerson (each, an “Investment”) except:
(a) cash and Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesPermitted Acquisitions;
(c) loans Investments by Parent and its Restricted Subsidiaries existing on the date hereof or advances made by Parent and its Restricted Subsidiaries pursuant to legally binding written contracts in existence on the Parent Borrower todate hereof, in each case, set forth on Schedule 7.04 and Guarantees by any modification, replacement, reinvestment, renewal or extension thereof to the Parent Borrower of obligations of, extent not involving any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Subsidiaryadditional net Investment;
(d) Investments made by Parent in or to any Restricted Subsidiary and made by any Restricted Subsidiary in or to Parent or any other Restricted Subsidiary and Guarantees by Parent or any Restricted Subsidiary of obligations of any other Restricted Subsidiary; provided that (i) the amount of any Investment under this clause (d) by a Loan Party in a Restricted Subsidiary which is not a Loan Party made after the Closing Date or constituting a Guarantee of obligations of any Restricted Subsidiary that is not a Loan Party made after the Closing Date shall not exceed, together with the aggregate amount of all other Investments made pursuant to this proviso, $100,000,000 at any time outstanding (excluding any intercompany accounts payable and receivable, guarantee fees and transfer pricing arrangements), and (ii) in the case of any intercompany Indebtedness (other than Indebtedness among Subsidiaries that are not Loan Parties and, for the avoidance of doubt, any intercompany accounts payable and receivable, guarantee fees and transfer pricing arrangements), (A) each item of intercompany Indebtedness shall be evidenced by a promissory note (which shall be substantially in the form of Exhibit H hereto or such other form as is reasonably acceptable to the Administrative Agent), (B) each promissory note evidencing intercompany Indebtedness made by a Subsidiary that is not a Loan Party to a Loan Party shall contain the subordination provisions set forth in Exhibit I and (C) each promissory note evidencing intercompany Indebtedness held by a Loan Party shall be pledged to the Collateral Agent pursuant to the applicable Collateral Documents to the extent required thereby;
(e) Guarantees constituting Indebtedness permitted by Section 6.017.01;
(ef) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) Investments made as a result of the receipt of non-cash consideration from a Disposition, of any asset in compliance with Section 7.03;
(h) Investments in the form of Swap Agreements entered into (i) to hedge or mitigate risks to which Parent or any Restricted Subsidiary has actual exposure (other than those in respect of Equity Interests of Parent or any of its Restricted Subsidiaries) or (ii) in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of Parent or any Restricted Subsidiary;
(i) payroll, travel and similar advances to directors, officers and employees of Parent, any Borrower or loans any Restricted Subsidiary that are made in the ordinary course of business;
(j) extensions of trade credit in the ordinary course of business;
(k) Investments to the extent the consideration paid therefor consists of Equity Interests (other than Disqualified Capital Stock) of Parent;
(l) Investments of any Person in existence at the time such Person becomes a Restricted Subsidiary; provided such Investment was not made in connection with or anticipation of such Person becoming a Restricted Subsidiary and any modification, replacement, renewal or extension thereof;
(m) the purchase by Parent or any Restricted Subsidiary of any call option (or similar instrument) to purchase Equity Interests (other than Disqualified Capital Stock) of Parent entered into contemporaneously and otherwise in connection with the issuance of convertible or exchangeable debt securities otherwise permitted to be issued under this Agreement; provided that (i) the aggregate consideration for such call option or options shall not exceed $75,000,000 million plus the amount of any Net Cash Proceeds received by Parent from the sale of any warrants (or similar instruments) to sell Equity Interests (other than Disqualified Capital Stock) of Parent entered into contemporaneously and otherwise in connection with the purchase of such option or options and issuance of such convertible or exchangeable debt securities and (ii) after giving effect to any such issuance of convertible or exchangeable debt securities (x) the Total Leverage Ratio shall be less than or equal to 3.00 to 1.00 and (y) the Secured Leverage Ratio shall be less than or equal to 2.25 to 1.00, in each case, as of the end of the most recently completed Test Period on a pro forma basis in accordance with Section 1.03(c) (and, if applicable, Section 1.03(e));
(n) any customary upfront milestone, marketing or other funding payment in the ordinary course of business to employees of another Person in connection with obtaining a right to receive royalty or other payments in the Parent Borrower and its Subsidiariesfuture;
(fo) existing Investments not otherwise permitted under this Agreement transfers of intellectual property to Foreign Subsidiaries, the Equity Interests of which are directly owned by or on behalf of any Loan Party and described in Schedule 6.05 heretoare pledged to the Administrative Agent pursuant to the Collateral Documents (including any local law governed pledge agreement requested by the Administrative Agent);
(gp) Investments received in connection with the bona fide settlement Exclusive Licenses from a Restricted Subsidiary that is not a Loan Party to a Loan Party of any defaulted Indebtedness rights to a drug or other liability owed to the Parent Borrower pharmaceutical products, diagnostics, delivery technologies, medical devices or any Subsidiarybiotechnology businesses; provided that such drug or other pharmaceutical products, diagnostics, delivery technologies, medical devices or biotechnology businesses was not acquired by such Restricted Subsidiary in an acquisition prohibited by Section 7.03;
(hq) Investments in joint ventures (including JV Subsidiaries) and acquisitions of Equity Interests that would constitute Permitted AcquisitionsAcquisitions but for the fact that Persons in which such Equity Interests are acquired do not become Wholly Owned Subsidiaries of Parent; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 the sum of the Code aggregate amount of Federal Regulationssuch Investments, plus the aggregate consideration paid in all such acquisitions, made under this clause (q) or (ii) after the Closing Date shall not exceed $50,000,000 at any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09time outstanding;
(ir) Swap Agreements Permitted Foreign Loans;
(s) Investments consisting of Permitted Liens, Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;
(t) loans or advances to directors and employees of Parent or any Restricted Subsidiary made in the ordinary course of business; provided that the aggregate amount of such loans and advances outstanding, when aggregated with the Guarantees then outstanding under Section 7.01(k), at any time shall not entered into for speculative purposesexceed $10,000,000;
(u) any other Investment so long as the aggregate amount of all such Investments made after the Closing Date does not exceed the greater of $300,000,000 and 10.0% of Consolidated Total Assets at any time outstanding;
(v) any Permitted Reorganization; and
(jw) InvestmentsParent and its Restricted Subsidiaries may make additional Investments using the Available Amount so long as the Available Amount Conditions have been met. For purposes of covenant compliance with this Section 7.04, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in addition to Investments permitted under clauses the value of such Investment or accrued and unpaid interest or dividends thereon, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of such Investment. For purposes of clause (aq), clause (u) through and clause (hw) of this Section 6.057.04, but including Investments permitted under Section 6.04(b)the aggregate consideration payable for any Investment shall be the cash amount paid on or prior to the consummation of such Investment and shall not include any purchase price adjustment, made after Milestone Payment, royalty, earnout, contingent payment or any other deferred payment of a similar nature that may be payable in connection therewith. Notwithstanding anything to the date hereof contrary in an aggregate amount the foregoing, Parent will not, and will not permit any of its Restricted Subsidiaries to, acquire any Unrestricted Margin Stock except to exceed $500,000,000 the extent it is acquired in any Person or Personsconnection with a Permitted Acquisition.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Parent Borrower or a Subsidiary Revolving 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 in the capital stock Equity Interests of its their respective Subsidiaries;
(cd) loans or advances made by the Parent Borrower to, to any Subsidiary of the Borrower (or to Holdings) and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower to the Borrower or any other SubsidiarySubsidiary of the Borrower;
(de) Guarantees constituting by the Borrower and its Subsidiaries of obligations of the Borrower or any of its Subsidiaries; provided that any such Guarantees by Subsidiaries of the Borrower of obligations of the Borrower shall be limited to Guarantees of Indebtedness that are permitted by Section 6.01;
(ef) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 heretobusiness;
(g) Investments 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 connection with the bona fide settlement of an aggregate principal amount not exceeding $5,000,000 at any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiarytime outstanding;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements loans or advances to employees in the ordinary course of business; provided that the aggregate amount of all loans and advances permitted by this clause (i) shall not entered into for speculative purposesexceed $750,000 at any time outstanding;
(j) 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 (j) shall not exceed $2,000,000 at any time outstanding;
(k) investments incurred in connection with Deferred Compensation Obligations; and
(jl) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof other investments in an aggregate amount not to exceed exceeding $500,000,000 in 50,000,000 at any Person or Personstime outstanding.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Advance Auto Parts Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such mergermerger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower Company or any of its Affiliates, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower Company or a Subsidiary in the capital stock of its Subsidiaries;
(c) loans or advances made by the Parent Borrower Company to, and Guarantees by the Parent Borrower Company of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower Company or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Parent Borrower Company and its Subsidiaries;
(f) Investments existing Investments on the Restatement Effective Date not otherwise permitted under this Agreement and described in Schedule 6.05 6.04 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower Company or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) Subsidiary or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, in each case such Domestic Subsidiary shall thereafter become party to the Guarantee Subsidiary Guaranty Agreement as a Subsidiary Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes;
(j) Investments in connection with the ownership, development, leasing, acquisition, construction or improvement of the Corporate Headquarters;
(k) Investments in joint ventures in an aggregate amount not to exceed the greater of (i) $100,000,000 and (ii) 2.75% of Total Assets (determined at the time of each such investment by reference to the Company’s financial statements most recently delivered pursuant to Section 5.01(a) or (b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)); and
(jl) Investments, in addition to Investments permitted under clauses (a) through (hj) of this Section 6.05, but including Investments permitted under Section 6.04(b), 6.04 made after the date hereof Original Effective Date in an aggregate amount not to exceed $500,000,000 at any time outstanding in any Person or Persons.
Appears in 1 contract
Samples: Credit Agreement (Coach Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent No Borrower will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Borrower and a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesotherwise), except:
(a) Permitted Investments, provided that, in the case of investments described in clauses (a) through (e) of the definition of Permitted Investments, such investments (other than investments in any Excluded Account (as defined in the Security Agreement)) shall be subject to control agreements in favor of the Administrative Agent or otherwise subject to a perfected security interest in favor of the Administrative Agent;
(bi) investments in existence on the date of this Agreement by the Parent a Borrower or a Subsidiary in the capital stock Equity Interests of its SubsidiariesSubsidiaries and (ii) other investments in existence on the date of this Agreement as described in Schedule 7.04(b); provided, that, other than to the extent permitted by clause (c) below, the amount in each case of (i) and (ii) is not increased after the date of this Agreement;
(c) investments after the date hereof by a Borrower in Equity Interests in its Domestic Subsidiaries, provided that any such Equity Interests shall be pledged to the Administrative Agent for the benefit of the Secured Parties in accordance with Section 6.13(b);
(d) loans or advances made by the Parent any Borrower to, to any Domestic Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by to any Subsidiary of obligations of, the Parent Borrower or any other Domestic Subsidiary;
(de) Guarantees guarantees constituting Indebtedness permitted by Section 6.01;
(e7.01(i) advances or loans made arising by endorsement of items for deposit or collection received in the ordinary course of business to employees of the Parent Borrower and its Subsidiariesbusiness;
(f) existing Investments not otherwise permitted under investments by Holdings in any Subsidiary to the extent required to make a Permitted Acquisition in accordance with the terms of this Agreement Agreement; provided with respect to any Foreign Subsidiary, (i) such investment is a Permitted Foreign Subsidiary Loan and described Investment, (ii) the Equity Interests held by a Borrower in Schedule 6.05 heretosuch Foreign Subsidiary shall be pledged to the Administrative Agent for the benefit of the Secured Parties in accordance with Section 6.13(b) and (iii) such Foreign Subsidiary must have the capacity to obtain its own financing without recourse to any Borrower;
(g) Investments subject to Section 8.02 hereof, notes payable, or stock or other securities issued by Account Debtors to a Borrower 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 7.07;
(i) investments of any Person existing at the time such Person becomes a Subsidiary of Holdings or consolidates or merges with Holdings 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 bona fide settlement dispositions of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with assets permitted by Section 5.09;
(i) Swap Agreements not entered into for speculative purposes7.05; and
(jk) Investments, investments constituting deposits described in addition to Investments permitted under clauses (ac) through and (hd) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons.definition of the term “Permitted Encumbrances”;
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly Owned Subsidiary prior to such merger) any capital stock, Capital Stock of or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliates(collectively, "Investments"), except:
(a) Permitted Investments;
(b) investments by Investments existing on the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesEffective Date and set forth on Schedule 6.5;
(c) loans or advances intercompany Investments made by the Parent Borrower toand its Subsidiaries in any Subsidiary (other than any Receivables Entity) that, and Guarantees by prior to such Investment, is a Subsidiary; provided that, after giving effect to any such Investment made on a particular date, the Parent Borrower aggregate amount of obligations of, any Subsidiary, and loans or advances outstanding Investments made by Loan Parties after the Effective Date in or with respect to Subsidiaries (other than any Receivables Entity) that are not Wholly Owned Subsidiary to, Guarantors shall not exceed an amount equal to 10% 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) loans and Guarantees by any Subsidiary advances to employees of obligations of, the Parent Borrower or any other SubsidiarySubsidiary in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for the Parent Borrower and its Subsidiaries not to exceed $20,000,000 at any one time outstanding;
(de) Guarantees constituting Indebtedness permitted by Section 6.016.2; provided that (i) a Subsidiary shall not Guarantee the Senior Notes, any Subordinated Debt, the XXXXx or any Other Permitted Debt unless (A) such 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 provides for the release and termination thereof, without action by any party, upon Disposition of the relevant Subsidiary, (ii) the aggregate principal amount of Indebtedness of Subsidiaries that are not Wholly Owned Subsidiary Guarantors that is Guaranteed by any Loan Party shall be subject to the limitation set forth in paragraph (c) above 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;
(ef) advances or loans made in the ordinary course of business to employees of Permitted Acquisitions;
(g) Guarantees by the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement Subsidiaries of any defaulted Indebtedness or other liability owed to Contractual Obligations (not constituting Indebtedness) of the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitionsintercompany Investments in any Wholly Owned Subsidiary created by the Parent Borrower or any of its Subsidiaries in connection with any corporate restructuring; provided that if, as a result of a Permitted Acquisition, (i) such newly-created Subsidiary is, or contemporaneously with the consummation of such restructuring becomes, a new Domestic Wholly Owned Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-XGuarantor, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (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 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 then existing Domestic 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 shall become such a Significant Subsidiaryto take, such Domestic Subsidiary actions as shall thereafter become party be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in Section 5.12, all at the Guarantee Agreement as a Guarantor in accordance with Section 5.09expense of the Loan Parties;
(i) Swap Agreements (i) Investments in the Xxxxxxx XX as at September 30, 2005 and (ii) additional Investments in the Xxxxxxx XX in an aggregate amount from September 30, 2005 through and including the date of such Investment not entered to exceed $75,000,000;
(j) Investments financed with 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 (f); provided that such non-cash consideration 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 30 days of receipt thereof by the Parent Borrower or such Subsidiary into for speculative purposescash; and
(jm) Investments, in addition to Investments that are not permitted under clauses (a) through (h) by any other paragraph of this Section 6.05Section, but including Investments permitted under Section 6.04(b)so long as, made after giving effect to any such Investment, the date hereof in an aggregate amount of Investments (valued at cost) at any one time outstanding shall not to exceed $500,000,000 250,000,000. The outstanding amount of any Investment 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 Person or PersonsInvestment shall not be less than zero.
Appears in 1 contract
Samples: Credit Agreement (SPX Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Parent Borrower or a Subsidiary in the capital stock of its Subsidiariesdate hereof and set forth on Schedule 6.04;
(c) investments by the Borrower and the Subsidiaries in Equity Interests in any entity that, after giving effect to such investment, would constitute a Foreign Subsidiary or non-wholly owned Subsidiary; provided that (i) such Equity Interests shall be pledged pursuant to the Collateral Agreement (subject to (A) with respect to any existing non-wholly owned Subsidiary, limitations on the ability to pledge Equity Interests as set forth in the charter, bylaws or other the organizational documents of such non-wholly owned Subsidiary and (B) the limitations applicable to voting Equity Interests of a Foreign Subsidiary referred to in paragraph (b) of the definition of Collateral and Guarantee Requirement), (ii) such investment shall be in the form of cash and/or Indebtedness permitted under this Agreement, (iii) the Leverage Ratio determined on a pro forma basis immediately after taking into account any such investments shall be no more than 0.75 greater than the Leverage Ratio immediately prior to such investments and (iv) the aggregate amount of such investments in any Persons who, at the time of the calculation and after giving effect to such investments, are not wholly owned Subsidiaries, shall not exceed $250,000,000;
(d) loans or advances made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, to any Subsidiary, and loans Subsidiary or advances made by any Subsidiary toto the Borrower or any other Subsidiary; provided that (i) any such loans and advances made by a Subsidiary to the Borrower 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 Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c) above;
(e) Guarantees by the Borrower of Indebtedness or other obligations of any Subsidiary and Guarantees by any Subsidiary of Indebtedness or other obligations of, of the Parent Borrower or any other Subsidiary; provided that (i) any such Guarantee constituting Indebtedness is permitted by Section 6.01 and (ii) the aggregate amount of Indebtedness and other obligations of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c) above;
(df) Guarantees constituting Indebtedness permitted by Section 6.01investments 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;
(eg) advances Hedging Agreements permitted under Section 6.07;
(h) Permitted Acquisitions;
(i) 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;
(j) prepaid expenses or loans lease, utility and other similar deposits, in each case made in the ordinary course of business to employees of the Parent Borrower and its the Subsidiaries;
(fk) existing Investments advances to officers, directors and employees of the Borrower and the Subsidiaries in the ordinary course of business of the Borrower and the Subsidiaries; provided that the aggregate amount of such advances outstanding at any time shall not otherwise exceed $5,000,000;
(l) 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 and described Agreement), so long as no cash, cash equivalents or other assets are advanced by the Borrower or any Subsidiary in Schedule 6.05 heretoconnection with such Investment;
(gm) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, investments made as a result of the receipt of noncash consideration from a Permitted Acquisitionsale, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined transfer or other disposition of any asset in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance compliance with Section 5.096.05;
(in) Swap Agreements [Reserved];
(o) other investments not entered into exceeding $15,000,000 in the aggregate in any fiscal year (it being understood that unused amounts of the cap in any fiscal year (without giving effect to any amount carried over from a prior fiscal year) may be carried over to the next succeeding fiscal year (but not any other fiscal year) (provided that amounts deducted in any fiscal year shall first be deemed to be allocated against the cap for speculative purposessuch fiscal year before giving effect to any carryover)); and
(jp) Investmentsother investments, provided that, at the time each such investment is made, the aggregate amount of investments made in addition to Investments permitted under clauses reliance upon this clause (ap) through (h) of shall not exceed the Available Amount at such time; provided, that any amounts in this Section 6.05, but including Investments permitted under Section 6.04(b), 6.04 corresponding to non-cash investments shall be made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Personsat Fair Market Value.
Appears in 1 contract
Samples: Credit Agreement (PharMerica CORP)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly Owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the 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 or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments existing on the date hereof and set forth on Schedule 6.05(b), to the extent such investments would not be permitted under any other clause of this Section 6.05;
(c) investments by the Parent Borrower or a Subsidiary and the Subsidiaries in the capital stock Equity Interests of its Subsidiariestheir respective subsidiaries (that are Subsidiaries prior to such Investment);
(cd) loans or advances made by the Parent Borrower to, to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary; provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged to secure the Obligations and (ii) the aggregate principal amount of loans and advances made by any German Loan Party to any other Loan Party shall not exceed the amount of free reserves of such German Loan Party;
(de) Guarantees by the Parent Borrower of Indebtedness and other obligations of any Subsidiary and Guarantees by any Subsidiary of Indebtedness or other obligations of the Parent Borrower or any other Subsidiary; provided that (i) no Subsidiary shall Guarantee the Senior First Lien Notes, Senior Second Lien Notes or Senior Subordinated Notes unless (A) such Subsidiary also has Guaranteed the Domestic Obligations, and (B) with respect to any Guarantee of the Senior Subordinated Notes, such Guarantee is subordinated to such Guarantee of the Domestic Obligations on terms no less favorable to the Lenders than the subordination provisions of the Senior Subordinated Notes and (ii) any such Guarantee constituting Indebtedness is permitted by Section 6.01;
(ef) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) payroll, travel and similar advances or loans to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business to employees of the Parent Borrower and its Subsidiariesbusiness;
(fh) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement investments of any defaulted Indebtedness Person existing at the time such Person becomes a Subsidiary or other liability owed to at the time such Person merges or consolidates with the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitionsof the Subsidiaries, in either case in compliance with the terms of this Agreement; provided that ifsuch investments were not made by such Person in connection with, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined or in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) anticipation or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiarycontemplation of, such Domestic Person becoming a Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09or such merger or consolidation;
(i) Swap Agreements not entered into for speculative purposesin compliance with Section 6.08;
(j) other loans, advances and investments; provided that the amount of any such loan, advance or investment made pursuant to this clause (j) together with all amounts payable in connection with Permitted Acquisitions pursuant to Section 6.05(l) shall not exceed $50,000,000 in the aggregate during the term of this Agreement;
(k) notes or other evidences of Indebtedness acquired as consideration in connection with a sale, transfer, lease or other disposition of any asset by the Parent Borrower or any of the Subsidiaries; and
(jl) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or PersonsPermitted Acquisitions.
Appears in 1 contract
Samples: Working Capital Credit Agreement (Pliant Corpororation)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold purchase or acquire (including pursuant to any merger with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or (collectively, “Investments”); provided that any loan made by the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any Restricted Subsidiary to any direct or indirect parent company of its Affiliatesthe Borrower in connection with the U.S. Healthworks Acquisition Transactions shall be deemed to be a Restricted Payment but not an “Investment” for purposes of this Agreement and any Qualified Proceeds or Permitted Investments subsequently received by the Borrower or such Restricted Subsidiary on account of principal or interest on any such loan shall be deemed a contribution to the capital of the Borrower for purposes of the definition of “Available Amount”), except:
(a) Permitted Investments;Acquisitions,
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its Subsidiaries;Permitted Investments,
(c) Investments existing on the Closing Date and set forth on Schedule 6.04 and any Investments consisting of extensions, modifications or renewals of any such Investments (excluding any such extensions, modifications or renewals involving additional advances, contributions or other investments of cash or property or other increases thereof unless it is a result of the accrual or accretion of interest or OID or payment-in-kind pursuant to the terms, as of the Closing Date, of the original Investment so extended, modified or renewed),
(d) Investments by the Borrower or any Restricted Subsidiaries in Equity Interests in their respective Restricted Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Collateral Agreement (subject to the limitations referred to in the definition of “Collateral and Guarantee Requirement”) and (B) the aggregate amount of investments in Non-Loan Parties by Loan Parties (together with outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(e) and outstanding Guarantees permitted to be incurred under clause (B) to the proviso to Section 6.04(f)) shall not exceed the greater of $28,750,000 and 2.875% of Total Assets at any time outstanding (in each case determined without regard to any write-downs or write-offs),
(e) loans or advances made by the Parent Borrower to, to any Restricted Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Restricted Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Restricted Subsidiary;; provided that (A) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Collateral Agreement and (B) the amount of such loans and advances made by Loan Parties to Non-Loan Parties (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(d) and outstanding Guarantees permitted under clause (B) to the proviso to Section 6.04(f)) shall not exceed the greater of $28,750,000 and 2.875% of Total Assets at any time outstanding (in each case determined without regard to any write-downs or write-offs),
(df) Guarantees constituting Indebtedness permitted by Section 6.01;6.01 and performance guarantees in the ordinary course of business; provided that (and without limiting the foregoing) the aggregate principal amount of Indebtedness of Non-Loan Parties that is Guaranteed by any Loan Party (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(d) and outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(e)) shall not exceed the greater of $28,750,000 and 2.875% of Total Assets at any time outstanding (in each case determined without regard to any write-downs or write-offs),
(eg) receivables or other trade payables owing to the Borrower or any Restricted Subsidiary if created or acquired in the ordinary course of business consistent with past practice and payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as the Borrower or any such Restricted Subsidiary deems reasonable under the circumstances,
(h) Investments consisting of Equity Interests, obligations, securities or other property received in settlement of delinquent accounts of and disputes with customers and suppliers in the ordinary course of business and owing to the Borrower or any Restricted Subsidiary or in satisfaction of judgments,
(i) Investments by the Borrower or any Restricted Subsidiary in payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business,
(j) loans or loans advances by the Borrower or any Restricted Subsidiary to employees and other individual service providers made in the ordinary course of business to employees (including travel, entertainment and relocation expenses) of the Parent Borrower and its Subsidiaries;or any Restricted Subsidiary not exceeding $2,875,000 in the aggregate at any time outstanding (determined without regard to any write-downs or write-offs of such loans or advances),
(fk) existing Investments not otherwise in the form of Swap Agreements permitted under this Agreement and described in Schedule 6.05 hereto;by Section 6.07,
(gl) Investments of any Person existing at the time such Person becomes a Restricted Subsidiary of the Borrower or consolidates or merges, in one transaction or a series of transactions, with the 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 Restricted Subsidiary or of such consolidation or merger,
(m) Investments received in connection with the bona fide settlement dispositions of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;assets permitted by Section 6.05,
(hn) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, Investments constituting deposits described in clauses (ic) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 d) of the Code definition of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;term “Permitted Encumbrances,”
(io) Swap Agreements not entered into for speculative purposes; and
Investments in Permitted Joint Ventures (j) Investments, together with the aggregate amount of Investments in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments Permitted Real Estate Joint Ventures permitted under Section 6.04(b6.04(p), made after the date hereof ) in an aggregate amount not to exceed $500,000,000 57,500,000 plus an amount equal to any returns (including dividends, interest, distributions, returns of principal and profits on sale) actually received in cash in respect of any Person such Investments (which amount shall not exceed the amount of such Investment valued at cost at the time such Investment was made),
(p) Investments in Permitted Real Estate Joint Ventures (together with the aggregate amount of Investments in Permitted Joint Ventures permitted under Section 6.04(o)) in an amount not to exceed $57,500,000 plus an amount equal to any returns (including dividends, interest, distributions, returns of principal and profits on sale) 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),
(q) payments, loans, advances to, and investments in, Consolidated Practices in the ordinary course of business and consistent with past practice in satisfaction of their obligations under any management services agreements,
(r) Investments by the Borrower or Personsany Restricted Subsidiary (including Investments in Permitted Joint Ventures and Permitted Acquisitions) 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 the Available Amount immediately prior to the time of the making of any such Investment,
(i) Investments by the Borrower or any Restricted Subsidiary (including Investments in Permitted Joint Ventures) in an amount not to exceed the greater of $57,500,000 and 5.75% of Total Assets and (ii) other Investments; provided that (x) no Event of Default has occurred and is continuing or would result therefrom and (y) immediately after giving effect to such Investment on a Pro Forma Basis, the Total Net Leverage Ratio does not exceed 5.00:1.00,
(t) Investments, loans and advances by the Borrower or any Restricted Subsidiary to any Captive Insurance Subsidiary in an amount equal to (A) the capital required under the applicable laws or regulations of the jurisdiction in which such Captive Insurance Subsidiary is formed or determined by independent actuaries as prudent and necessary capital to operate such Captive Insurance Subsidiary plus (B) any reasonable general corporate and overhead expenses of such Captive Insurance Subsidiary,
(u) any Investment solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Borrower or Holdings (or any other direct or indirect parent company of the Borrower), and
(v) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business. For purposes of covenant compliance, the amount of any Investment outstanding at any time shall be the original cost of such Investment (without adjustment for any increases or decreases in the value of such Investments), reduced by (except in the case of any Investments made using the Available Amount pursuant to Section 6.04(r) and returns which are included in the Available Amount pursuant to the definition thereof) any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by the Borrower or a Restricted Subsidiary in respect of such Investment.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesotherwise), except:
(a) Permitted Investments, subject to control agreements in favor of the Administrative Agent for the benefit of the Lenders or otherwise subject to a perfected security interest in favor of the Administrative Agent for the benefit of the Lenders;
(b) investments by in existence on the Parent Borrower or a Subsidiary date of this Agreement and described in the capital stock of its SubsidiariesSchedule 6.04;
(c) investments by Holdings in the Borrowers and by the Borrowers and the Subsidiaries in Equity Interests in their respective Subsidiaries, in each case, in existence on the Effective Date; provided that any such Equity Interests held by a Loan Party shall be pledged pursuant to the Security Agreement and (subject to the limitation applicable to common stock of a foreign Subsidiary referred to in Section 5.13);
(d) loans or advances made by the Parent any Borrower to, to any Subsidiary Guarantor or any other Borrower and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by Guarantor to any Subsidiary of obligations of, the Parent Borrower or any other SubsidiarySubsidiary Guarantor, provided that any such loans and advances shall be evidenced by a promissory note pledged pursuant to the Security Agreement;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) loans or advances or loans made by a Loan Party to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to employees a maximum of $250,000 in the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 heretoaggregate at any one time outstanding;
(g) Investments investments received in connection with the bona fide bankruptcy or reorganization of suppliers and customers and in settlement of any defaulted Indebtedness delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business, consistent with past practices, subject, if such investment includes notes payable, or stock or other liability owed securities issued by an Account Debtor to a Loan Party, to Sections 4.2(a) and 4.4 of the Parent Borrower or any SubsidiarySecurity Agreement;
(h) Permitted Acquisitions; provided that if, as a result investments in the form of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Swap Agreements permitted by Section 5.096.07;
(i) Swap Agreements investments received in connection with the dispositions of assets permitted by Section 6.05;
(j) investments constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”;
(k) loans or advances made by Integrated to Americana; provided that (A) all such loans and advances shall be evidenced by a promissory note (the “Americana Note”) pledged pursuant to the Security Agreement, (B) such loans and advance shall be secured by a mortgage on the Texas Properties, which mortgage shall have been assigned to the Administrative Agent, (C) no loans or advances shall be made by Integrated at any time that an Event of Default pursuant to clause (a) or (b) of Article VII has occurred and is continuing, and (D) the principal amount of such loans and advances shall not entered into for speculative purposesexceed $8,000,000 at any time outstanding; and
(jl) Investmentsthe Americana Subordinated Indebtedness, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed at any time the sum of (i) $500,000,000 1,300,000 plus (ii) all management fees due and owing by Americana to Integrated pursuant to the Management Agreement during the period commencing on the Effective Date and ending on the second anniversary of the Effective Date plus (iii) all interest accrued thereon (including interest added to the principal amount as paid in any Person or Personskind) in accordance with the terms of the Americana Subordinated Indebtedness; provided that the secured subordinated note evidencing the Americana Subordinated Indebtedness is pledged pursuant to the Security Agreement.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, 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 make or permit to exist any Guarantees of any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactionstransactions (including pursuant to any merger)) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Parent Borrower or a Subsidiary Restatement Date and set forth in the capital stock of its SubsidiariesSchedules 4.12 and 7.4;
(c) investments made by the Borrower in the Equity Interests of any Subsidiary Guarantor and made by any Subsidiary Guarantor in the Equity Interests of any other Subsidiary Guarantor;
(d) loans or advances made by the Parent Borrower to, to any Subsidiary Guarantor and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01Subsidiary Guarantor;
(e) advances acquisitions made by the Borrower from any Subsidiary Guarantor and made by any Subsidiary Guarantor from the Borrower or loans made in the ordinary course of business to employees of the Parent Borrower and its Subsidiariesany other Subsidiary Guarantor;
(f) existing Investments not otherwise acquisitions permitted under this Agreement and described in Schedule 6.05 heretoby Section 7.5(d), provided that such acquisitions shall be Cable Television System Acquisitions;
(g) Investments received in connection with if at the bona fide settlement of any defaulted Indebtedness time thereof and immediately after giving effect thereto no Default shall have occurred or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted would be continuing, Cable Television System Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 200,000,000;
(h) Guarantees permitted by Section 7.1;
(i) investments, loans, advances, Guarantees and acquisitions expressly contemplated by the Initial Transactions;
(j) [Reserved]; and
(k) if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing other investments, loans, advances, Guarantees and acquisitions, provided that the sum of (i) the aggregate consideration paid by the Borrower or any Subsidiary in connection with all such acquisitions, (ii) the aggregate amount of all such other investments, loans and advances outstanding and (iii) the amount of obligations and liabilities outstanding in the aggregate that is Guaranteed pursuant to all such other Guarantees shall not exceed $50,000,000 at any Person or Personstime.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent U.S. Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such mergermerger in which the U.S. Borrower or any Subsidiary is the surviving party) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or 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 unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its AffiliatesAcquisition, except:
(a) Permitted Investments;
(b) investments by Investments, loans and advances existing on the Parent Borrower or a Subsidiary date hereof and set forth in Schedule 6.04(b), and extensions, renewals and replacements thereof that do not increase the capital stock of its Subsidiariesoutstanding amount thereof;
(ci) Investments, loans or advances made by the Parent U.S. Borrower toor any Subsidiary in the U.S. Borrower, and Guarantees any Domestic Subsidiary that is a Guarantor or any other Borrower, (ii) Investments, loans or advances made by the Parent U.S. Borrower of obligations ofor any Subsidiary in any Foreign Subsidiary in an aggregate outstanding amount at any time not to exceed $50,000,000; and (iii) Investments, any Subsidiary, and loans or advances made by any Foreign Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or in any other Foreign Subsidiary;
(d) Permitted Acquisitions;
(e) Investments comprised of capital contributions (whether in the form of cash, a note, or other assets) in a Subsidiary or other special-purpose entity created solely to engage in a Qualified Receivables Transaction or otherwise resulting from transfers of assets permitted hereunder to such a special-purpose entity;
(f) Guarantees constituting Indebtedness permitted by Section 6.01;
(eg) advances Guarantees by the U.S. Borrower or any Subsidiary of Indebtedness or other obligations (including operating lease obligations), incurred in the ordinary course of business, of the U.S. Borrower or any other Loan Party;
(h) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(i) 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;
(j) extensions of credit in the nature of accounts receivable or notes receivable in the ordinary course of business;
(k) 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; and payroll, travel and similar advances to employees 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 Parent Borrower and its Subsidiariesordinary course of business;
(fl) existing Investments not with respect to Swap Agreements otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposeshereunder; and
(jm) InvestmentsGuarantees, loans, advances or other investments not otherwise permitted by this Section 6.04 in addition an aggregate outstanding amount at any time not to Investments permitted under clauses (a) through (h) exceed 10% of Consolidated Total Assets. For purposes of this Section 6.056.04, but including Investments permitted under Section 6.04(bthe amount of any investment outstanding at any time shall be the total of (x) the original cost of such Investment (meaning the cash amount thereof, if in cash, or the fair market value thereof as determined by the management of the U.S. Borrower, if in property), made after without any adjustment for increases or decreases in value or any writeup or writedown with respect to such investment; provided, that any Investment in the date hereof form of Guarantees shall be valued at the reasonably expected liability thereof, minus (y) an amount equal to the lesser of the return of cash with respect to any such Investment (other than a Guarantee) and the initial amount of such Investment, in an aggregate amount not to exceed $500,000,000 in any Person or Personseither case, less the cost of disposition of such Investment.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, (i) purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or (ii) purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit unit, division, product line or the line of business or a pharmaceutical product of such Person, or (iii) acquire an exclusive long-term license of rights to a drug or other product line of any licensee under Person (each, an “Investment”; it being understood and agreed that, for the avoidance of doubt, royalties, Milestone Payments or Earnout Payments based on sales of a trademark license to such licensee from the Parent Borrower or any of its Affiliatesproduct shall not constitute Investments), except:
(a) Permitted Investments;
(b) investments Permitted Acquisitions;
(c) Investments by the Parent Borrower or a Subsidiary and its Subsidiaries existing on the date hereof in the capital stock of its SubsidiariesSubsidiaries and Investments in new Domestic Subsidiaries which are created by Borrower or any Domestic Subsidiary after the date hereof so long as Borrower complies with Section 5.09;
(cd) Investments, loans or advances made by the Parent Borrower to, in or to any Subsidiary (including a new Subsidiary) and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, in or to the Parent Borrower or any other SubsidiarySubsidiary (provided that not more than an aggregate amount of $10,000,000 in investments, loans or advances or capital contributions may be made and remain outstanding, at any time, by Loan Parties to Subsidiaries which are not Loan Parties);
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;Section 6.03; and
(g) Investments received in connection with any other Investment, loan or advance (other than acquisitions) so long as the bona fide settlement aggregate amount of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and all such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount loans and advances does not to exceed $500,000,000 in 100,000,000 at any Person or Personstime outstanding.
Appears in 1 contract
Samples: Credit Agreement (Par Pharmaceutical Companies, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly Owned Subsidiary prior to such merger) any capital stock, Capital Stock of or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliates(collectively, “Investments”), except:
(a) Permitted Investments;
(b) investments by Investments existing on the Parent Borrower or a Subsidiary Effective Date and set forth in Section 6.5 of the capital stock of its SubsidiariesDisclosure Letter;
(c) loans or advances made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, Investments in any Wholly Owned Subsidiary, provided that, if and to the extent applicable, the requirements set forth in Section 5.11 with respect to such Wholly Owned Subsidiary are satisfied;
(d) loans or and advances made by any Subsidiary to, and Guarantees by any Subsidiary to employees of obligations of, the Parent Borrower or any other SubsidiarySubsidiary in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for the Parent Borrower and its Subsidiaries not to exceed $20,000,000 at any time outstanding;
(de) Guarantees constituting Indebtedness permitted by Section 6.016.2; provided that (i) a Subsidiary shall not Guarantee the Senior Notes, any Subordinated Debt or any Other Permitted Debt unless (A) such 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 provides for the release and termination thereof, without action by any party, upon Disposition of the relevant Subsidiary, (ii) the aggregate principal amount of Indebtedness of Subsidiaries that are not Wholly Owned Subsidiary Guarantors that is Guaranteed by any Loan Party shall be subject to the limitations set forth in clauses (c), (g), (l) or (m) of this Section 6.5 and (iii) a Subsidiary shall not Guarantee the Indebtedness of any Parent Borrower or any Subsidiary Guarantor unless such Subsidiary has also Guaranteed the Obligations pursuant to the Guarantee and Collateral Agreement;
(ef) advances Permitted Acquisitions (including any related Investment in any Subsidiary in order to provide all or loans made any portion of (but not more than) the Consideration for such Permitted Acquisition);
(g) (i) Guarantees by the Parent Borrower and any of its Subsidiaries of any Contractual Obligations (not constituting Indebtedness) of the Parent Borrower or any 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 cash pooling arrangements among Foreign Subsidiaries (sometimes intermediated by a commercial bank);
(h) Investments in the ordinary course 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 business such Investment not to employees exceed $75,000,000;
(i) 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 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 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 Event of Default shall occur after giving effect to such 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) or Section 6.6(d).
(k) Investments comprised of non-cash consideration received by the Parent Borrower or any Subsidiary in connection with any Disposition permitted by Section 6.6(e) or (f);
(l) (i) Guarantees by the Parent Borrower and any of its Subsidiaries of Indebtedness permitted by subsections (j), (p) and (r) of Section 6.2 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., any other Chinese Subsidiary or other Foreign Subsidiary permitted by Section 6.2(r); and
(m) (i) other Investments 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 less than 2.50 to 1.0 and (ii) other Investments in the aggregate not to exceed an amount equal to 10% of Total Consolidated Assets of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described Subsidiaries if, after giving effect to any such Investment on a pro forma basis in Schedule 6.05 hereto;
(g) Investments received in connection with each case recomputed as at the bona fide settlement last day of any defaulted Indebtedness or other liability owed to 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 Subsidiary;
Investment shall be equal to the sum of (hx) Permitted Acquisitionsthe original cost of such Investment (such original cost to be determined at the time any 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 if, as a result the amount of a Permitted Acquisition, (i) a new Domestic Subsidiary any Investment shall not be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Personsless than zero.
Appears in 1 contract
Samples: Credit Agreement (SPX Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) make any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its AffiliatesAcquisition, except:
(a) Permitted Investments;
(b) investments by Investments, loans and advances existing on the Parent Borrower or a Subsidiary date hereof and set forth in Schedule 6.04 and extensions, renewals and replacements thereof that do not increase the capital stock of its Subsidiariesoutstanding 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, loans or advances made by (i) the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Subsidiary to the Borrower or any Domestic Subsidiary that is a Guarantor or (ii) any Foreign Subsidiary that is not a Guarantor to any Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made in the ordinary course of business to employees Acquisitions, provided that: (i) before and after giving pro forma effect thereto (as of the Parent Borrower end of the most recently ended Fiscal Quarter of the Borrower), no Default exists or would be caused thereby and its Subsidiaries(ii) if such Acquisition involves the acquisition of Equity Interests, the consummation of such Acquisition has been recommended by the Board of Directors and management of the target of such Acquisition;
(f) existing Investments Guarantees (i) by the Borrower or any Subsidiary of Indebtedness of the Borrower or any Domestic Subsidiary that is a Guarantor, (ii) by any Foreign Subsidiary that is not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;a Guarantor of any Indebtedness of any Subsidiary, or (iii) of any of the Obligations; and
(g) Investments received Guarantees, investments, loans or advances not otherwise permitted by this Section 6.04 not in connection with excess of fifteen percent (15%) of Consolidated Total Assets in the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitionsaggregate; provided that ifthe aggregate outstanding amount (exclusive of investments, loans or advances to Subsidiaries under Section 6.04(d)(ii)) of such Guarantees of, and investments, loans or advances to, Subsidiaries that are not Guarantors shall not exceed seven and one-half percent (7.5%) of Consolidated Total Assets in the aggregate.
1.13 Section 6.09(a) is restated as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;follows:
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) prohibit any sale or other transfer of this Section 6.05, but including Investments permitted an interest in accounts or notes receivable to a Securitization Entity pursuant to Permitted Securitization Transactions if the aggregate outstanding principal amount of the Indebtedness under Section 6.04(b), made after the date hereof in an aggregate amount all Permitted Securitization Transactions does not to exceed $500,000,000 in any Person or Persons.250,000,000,
1.14 Section 6.09(c) is restated as follows:
Appears in 1 contract
Samples: Term Loan Agreement (Perrigo Co)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
(c) investments by the Parent Borrower or a Subsidiary and its Subsidiaries existing on the Restatement Effective Date in the capital stock of its Subsidiaries;
(cd) investments, loans or advances made by the Parent Borrower to, in or to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, in or to the Parent Borrower or any other SubsidiarySubsidiary (provided that not more than an aggregate amount of $10,000,000 in investments, loans or advances or capital contributions may be made and remain outstanding, at any time, by Loan Parties to Subsidiaries which are not Loan Parties);
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) advances or loans made in the ordinary course of business to employees investments acquired by reason of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement exercise of any defaulted Indebtedness customary creditor’s rights upon default or other liability owed pursuant to the Parent bankruptcy, insolvency or reorganization of an account debtor of the Borrower or any Subsidiary;
(g) investments by the Borrower or any Subsidiary pursuant to any Swap Agreements to the extent permitted under Section 6.05;
(h) Permitted Acquisitions; provided that if, as a result investments by the Borrower or any Subsidiary in equity interests of a Permitted Acquisition, Persons (iother than Subsidiaries) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined engaged in Regulation S-X, part 210.1-02 lines of Title 17 business of the Code type conducted by the Borrower and its Subsidiaries as of Federal Regulations) or the Restatement Effective Date and businesses reasonably related thereto not in excess in any fiscal year of 10% of Consolidated Total Assets (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to calculated as of the Guarantee Agreement as a Guarantor in accordance with Section 5.09;last day of the most recent fiscal year); and
(i) Swap Agreements other investments by the Borrower or any Subsidiary not entered into for speculative purposes; and
exceeding the greater of (jx) Investments, in addition to Investments permitted under clauses 5% of Consolidated Total Assets (acalculated as of the last day of the most recent fiscal year) through and (hy) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons20,000,000.
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Neither Holdings nor the Borrower will, nor will not, and will not they permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Subsidiary prior to such merger) any capital stockEquity Interests (but specifically excluding (x) Holdings’ right to acquire and hold additional Equity Interests in (including, for this purpose, to the extent not otherwise falling within the definition of “Equity Interests”, any trust preferred securities of) the Borrower and (y) redemptions or other repurchases by the Borrower or Holdings of any such Equity Interests in accordance with the provisions of Sections 4.2(e) and 7.4(d) of the LLC Agreement) 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 or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesPermitted Acquisitions;
(c) investments existing on the date hereof and set forth on Schedule 10.4.;
(d) 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 by Holdings in Equity Interests of the Borrower, by the Borrower or any other Loan Party (other than Holdings) in Equity Interests of a Subsidiary that is a Loan Party or any direct or indirect Wholly Owned Subsidiary of any Loan Party and (ii) loans or advances made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other SubsidiaryLoan Party (other than Holdings) to any Subsidiary that is a Loan Party or any direct or indirect Wholly Owned Subsidiary of any Loan Party and (iii) any contribution of assets from a Loan Party or a Wholly Owned Subsidiary of a Loan Party to another Loan Party or Wholly Owned Subsidiary of a Loan Party;
(df) Guarantees constituting Indebtedness investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) investments in the form of Swap Agreements permitted by Section 6.0110.6.;
(eh) advances investments of any Person existing at the time such Person becomes a Subsidiary or loans consolidates or merges with the Borrower or any Subsidiary (including in connection with a Permitted Acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger;
(i) investments resulting from pledges or deposits described in clause (c) or (d) of the definition of the term “Permitted Lien”;
(j) investments received in connection with the disposition of any asset permitted by Section 10.5.;
(k) receivables or other trade payables owing to the Borrower or a Subsidiary if created or acquired in the ordinary course of business to employees of and payable or dischargeable in accordance with customary trade terms, provided that such trade terms may include such concessionary trade terms as the Parent Borrower and its Subsidiariesor any Subsidiary deems reasonable under the circumstances;
(fl) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with investments by the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; a Subsidiary in Equity Interests in joint ventures the primary business of which are businesses of the type conducted by the Borrower and the Subsidiaries on the Effective Date and businesses reasonably related thereto, provided that if, as a result of a Permitted Acquisitionimmediately after giving effect to such investment, (i) a new Domestic the Borrower or such Subsidiary shall be created and will own Equity Interests in such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 joint venture representing at least 50% of the Code aggregate equity value represented by the issued and outstanding Equity Interests in such joint venture, (ii) the Borrower or a Subsidiary will manage or otherwise be responsible for the day-to-day operations of Federal Regulationssuch joint venture pursuant to a customary management contract (or will have been designated to act in such capacity upon project completion) or will have influence over such day-to-day operations by virtue of a franchise arrangement (or will have been designated to have such influence upon project completion) or (iiiii) any then existing Domestic the Borrower or a Subsidiary shall become will be the managing member or day-to-day administrative member of such a Significant Subsidiaryjoint venture, or will have approval rights over major decisions with respect to such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09joint venture;
(im) Swap Agreements 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 other than Guarantees permitted under Section 10.1.(a)(xiv)) and without giving effect to any write-downs or write-offs thereof, that at the time of, and after giving effect to, the making thereof would not entered into exceed 25% of Total Assets as of the end of the fiscal quarter immediately prior to the date of such investment for speculative purposeswhich financial statements have been delivered pursuant to Section 9.1. or 9.2.;
(n) repurchases by either of Holdings or the Borrower of common Equity Interests previously issued by such entity, subject to an aggregate limit of not more than $75,000,000 in the aggregate during the term of this Agreement;
(o) any Guarantees and/or indemnities permitted by Section 10.1.(a)(xiii); and
(jp) Investmentsinvestments by Holdings in Equity Interests of a Subsidiary or other Person who (i) is not a Subsidiary of the Borrower and (ii) directly or indirectly owns the Hard Rock Hotel and Casino in Las Vegas, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or PersonsNevada and other assets incidental thereto.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary (other than directors’ qualifying shares as required by law or shares held by nominees on behalf of the Borrower or any Subsidiary as required by law) prior to such mergermerger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations Indebtedness of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliates(each, an “Investment”), except:
(a) Investments constituting Permitted InvestmentsInvestments at the time made and Investments existing as of the date hereof and set forth in Schedule 6.05 to the Disclosure Letter and Investments to be made pursuant to written commitments set forth on Schedule 6.05 to the Disclosure Letter;
(b) investments Investments by the Parent Borrower or a Subsidiary and its Subsidiaries existing on the date hereof in the capital stock Equity Interests of its Subsidiaries;
(c) loans or advances made by the Parent Borrower to, and (i) Guarantees by the Parent Borrower of obligations ofany Indebtedness, any Subsidiary, and loans or advances made by any Subsidiary to, and (ii) Guarantees by any Subsidiary of obligations of, constituting Indebtedness permitted by Section 6.01 and (iii) Guarantees by the Parent Borrower or any other SubsidiarySubsidiary of obligations of the Borrower or any Subsidiary not constituting Indebtedness;
(d) Guarantees constituting Indebtedness permitted by Section 6.01Investments 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;
(e) Investments arising out of the receipt of non-cash consideration for any disposition permitted by Section 6.04 or any other disposition not prohibited by this Agreement;
(f) advances or loans to officers, directors and employees of the Borrower and Subsidiaries made in the ordinary course of business to employees of the Parent Borrower for travel, entertainment, relocation, commission advances and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 heretoanalogous ordinary business purposes;
(g) Investments received in connection with arising under any Swap Agreement permitted pursuant to Section 6.06;
(h) to the bona fide settlement extent constituting Investments, pledges and deposits permitted pursuant to clauses (c) and (d) of the definition of Permitted Encumbrances or clauses (k) or (m) of Section 6.02;
(i) Investments arising under any accelerated stock repurchase agreement, forward contract or other similar agreement that is permitted pursuant to Section 6.08(h);
(j) Investments of any defaulted Indebtedness 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 such Person becoming a Subsidiary;
(k) Investments made by the Borrower in or other liability owed to any Subsidiary or made by any Subsidiary in or to the Parent Borrower or any Subsidiary;
(hl) Permitted Acquisitions; provided that if, as a result Investments made by Venture Fund in the ordinary course of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof business in an aggregate amount not to exceed $500,000,000 100,000,000; and
(m) any other Investment (including the formation of any Subsidiary in any Person connection with such acquisition and the capitalization of such Subsidiary whether by capital contribution or Personsintercompany loans) so long as both immediately prior to and after giving effect (including giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing and (ii) the Borrower is in compliance with the financial covenants set forth in Section 6.10 for the most recently ended fiscal quarter.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower No Loan Party will, or will not, and will not permit any of its Subsidiaries Restricted 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 capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by Permitted Acquisitions (with the Parent Borrower understanding that a Loan Party or Restricted Subsidiary may use proceeds of Indebtedness to consummate a Permitted Acquisition so long as such Indebtedness is permitted under the Loan Documents); provided, that all such Permitted Acquisitions of any Person designated as an Unrestricted Subsidiary in at the capital stock time of its Subsidiariessuch Permitted Acquisition, when aggregated with all other Restricted Intercompany Transactions, shall not at any time exceed the Restricted Intercompany Transactions Amount;
(c) loans or advances made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other SubsidiaryTranscontinental Transaction;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;loans or advances made by:
(e) advances or loans made in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or Loan Party to another Loan Party;
(ii) a Loan Party to any then existing Domestic Restricted Subsidiary shall become such that is not a Significant SubsidiaryLoan Party, such Domestic Subsidiary shall thereafter become party subject to the Guarantee Agreement as a Guarantor in accordance with proviso at the end of this Section 5.096.04(d);
(iiii) Swap Agreements not entered into for speculative purposesany non-Loan Party Subsidiary that is a Restricted Subsidiary to a Loan Party;
(iv) any non-Loan Party Subsidiary that is a Restricted Subsidiary to any other non-Loan Party Subsidiary that is a Restricted Subsidiary; and
(jv) Investmentsany Loan Party or Restricted Subsidiary to any Unrestricted Subsidiary, any Affiliate of any Loan Party or Restricted Subsidiary, or any Person in addition which a Loan Party or other Restricted Subsidiary owns no more than 50% of the voting Equity Interests thereof, subject to Investments permitted under clauses (a) through (h) the proviso at the end of this Section 6.056.04(d); provided, but including Investments permitted under Section 6.04(bthat all such loans and advances covered by (d)(ii) and (d)(v), made after when aggregated with all other Restricted Intercompany Transactions, shall not at any time exceed the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons.Restricted Intercompany Transactions Amount;
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary existing on the date hereof in the capital stock of its Subsidiaries;
(c) loans or advances made by the Parent Borrower to, to any Guarantor and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other SubsidiaryGuarantor;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances Acquisitions meeting the following requirements or loans made otherwise approved by the Required Lenders (each such Acquisition constituting a “Permitted Acquisition”):
(i) as of the date of the consummation of such Acquisition, no Default shall have occurred and be continuing or would result from such Acquisition, and the representation and warranty contained in Section 5.08 shall be true both before and after giving effect to such Acquisition;
(ii) such Acquisition is consummated on a non-hostile basis pursuant to a negotiated acquisition agreement approved by the ordinary course board of directors or other applicable governing body of the seller or entity to be acquired, and no material challenge to such Acquisition (excluding the exercise of appraisal rights) shall be pending or threatened by any shareholder or director of the seller or entity to be acquired;
(iii) the business to be acquired in such Acquisition is similar or related to one or more of the lines of business to employees of in which the Parent Borrower and its SubsidiariesSubsidiaries are engaged on the Closing Date;
(iv) as of the date of the consummation of such Acquisition, all material approvals required in connection therewith shall have been obtained; and
(v) the total cash and noncash consideration paid by or on behalf of the Borrower and its Subsidiaries for all such Permitted Acquisitions shall not exceed $250,000,000 in the aggregate and the total cash consideration portion thereof shall not exceed $100,000,000 in the aggregate.
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with by the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; Guarantor in any Subsidiary that is not a Guarantor, Investments in joint ventures and other Investments in any other Persons, provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 all of the Code foregoing shall not exceed the amount of Federal Regulations) or (ii) $20,000,000 in the aggregate at any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Personsone time outstanding.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchasePurchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Wholly-Owned Subsidiary of a Borrower or that is a Foreign Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliates(each, an “Investment”), except:
(a) Permitted InvestmentsInvestments existing on the date hereof and set forth on Schedule 10.2.4;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesPermitted Investments;
(c) loans or advances made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower Obligors or any other Subsidiaryof their Subsidiaries to their respective employees, directors, managers, officers, agents, customers, or suppliers in the Ordinary Course of Business, not to exceed $1,000,000 in the aggregate at any one time outstanding;
(d) Guarantees constituting Indebtedness permitted Accounts receivable owned by Section 6.01Obligors or any of their Subsidiaries, if created in the Ordinary Course of Business and payable or dischargeable in accordance with customary trade terms;
(ei) advances or loans made in the ordinary course of business to employees Guarantees of the Parent Borrower obligations (other than Debt) of any Domestic Subsidiary that is not a Wholly-Owned Subsidiary by any other Domestic Subsidiary that is not a Wholly-Owned Subsidiary, and its Subsidiaries(ii) Guarantees of the obligations (other than Debt) of an Obligor by any other Obligor; provided that an Obligor shall not Guarantee any Subordinated Debt;
(f) existing the grant of trade credit in the Ordinary Course of Business and payable or dischargeable in accordance with customary trade terms and Investments not otherwise permitted under this Agreement (i) received in connection with the bankruptcy or reorganization of, or settlement of delinquent Accounts and described disputes with, customers and suppliers, in Schedule 6.05 heretoeach case in the Ordinary Course of Business or (ii) received in settlement of debts created in the Ordinary Course of Business and owing to any Obligor or Subsidiary or in satisfaction of judgments;
(g) Investments received (i) by any Obligor in connection with the bona fide settlement of any defaulted Indebtedness other Obligor, (ii) by any Domestic Subsidiary that is not an Obligor in any other Domestic Subsidiary that is not an Obligor, (iii) by any Foreign Subsidiary in any other Foreign Subsidiary, or other liability owed to the Parent (iv) by a Borrower or any SubsidiaryDomestic Subsidiary in Foreign Subsidiaries in an aggregate amount not exceeding the sum of (A) $1,000,000 in the form of cash plus (B) $15,000,000 in the form of tangible Property plus (C) the amount of third party equity contributions made to the Borrower that are used to fund such Investments;
(h) Investments in the form of Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements Investments consisting of lease, utility and other similar deposits in the Ordinary Course of Business;
(i) Investments in assets useful in the business of any Obligor using the proceeds of any disposition made by an Obligor permitted by Section 10.2.5, and (ii) Investments in assets useful in the business of any Subsidiary that is not entered into for speculative purposesan Obligor using the proceeds of any disposition made by any Subsidiary that is not an Obligor permitted by Section 10.2.5; and
(jk) Investments, other Investments (in addition to Investments permitted under clauses (athe form of cash or other assets) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed at any one time outstanding $500,000,000 in 30,000,000 minus the aggregate consideration paid pursuant to Acquisitions made from and after the Closing Date pursuant to Section 10.2.16(a)(y); provided that:
(i) before and after giving effect to such Investment, no Default or Event of Default shall have occurred and be continuing;
(ii) immediately after giving effect to such Investment, either:
(1) the aggregate amount of Investments outstanding for any Person or Personspurpose other than facilitating an Acquisition pursuant to Section 10.2.16 does not exceed $15,000,000; or
(2) the Total Leverage Ratio as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are available, on a pro forma basis giving effect to such Investment, is less than 1.50:1.00.
Appears in 1 contract
Samples: Senior Secured Term Loan Agreement (Solaris Energy Infrastructure, Inc.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower Borrowers will not, and will not permit any Subsidiary of its Subsidiaries any Borrower to, purchase, hold or acquire (including pursuant to any merger or amalgamation with any Person that was not a Borrower and a wholly owned Subsidiary prior to such mergermerger or amalgamation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (whether through purchase of assets, merger, amalgamation or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesotherwise), except:
(a) Permitted Investmentsinvestments in existence on the Filing Date and described in Schedule 8.04;
(bi) investments made by the Parent any Borrower or a Subsidiary in the capital stock Capital Stock of its Subsidiariesany wholly-owned Subsidiary which is a Borrower, and (ii) investments made by any Subsidiary which is not a Borrower in the Capital Stock of any Subsidiary which is a Borrower;
(c) loans or advances made by the Parent a Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or to any other SubsidiaryBorrower permitted by Section 8.01;
(d) Guarantees constituting Indebtedness permitted notes payable, or stock or other securities issued by Section 6.01;Account Debtors to a Borrower in connection with the bankruptcy or reorganization of Account Debtors or in settlement or delinquent obligations of Account Debtors; and
(e) advances or loans made in Investments otherwise expressly permitted pursuant to the ordinary course terms of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described provided for and disclosed in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; Agreed Budget, provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary no such Investments shall be created and made if immediately prior to making such Domestic Subsidiary Investment, or after giving effect thereto, there shall exist an Event of Default which is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Personscontinuing.
Appears in 1 contract
Samples: Debt Agreement (D. E. Shaw Laminar Acquisition Holdings 3, L.L.C.)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
(c) investments by the Parent Borrower and its Subsidiaries in their respective Subsidiaries or a Subsidiary in the capital stock of its their respective Subsidiaries;
(cd) loans or advances made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Subsidiary;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) advances or loans made in the ordinary course of business to non-executive officers and employees of the Parent Borrower and its Subsidiaries;
(fg) Investments existing Investments on the date hereof not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(gh) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;and
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investmentsjoint ventures, loans to contractors, loans in addition connection with retail development, deposits to landlords and other Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed exceeding $500,000,000 in 50,000,000 at any Person or Personstime.
Appears in 1 contract
Samples: Credit Agreement (Pacific Sunwear of California Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly wholly-owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment Investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
(c) investments by the Parent Borrower or a Subsidiary in the capital stock of its Subsidiaries; provided that any Investments made by the Borrower after the date of this Agreement in the capital stock of any Subsidiary which is not a Loan Party shall comply with the proviso in Section 6.04(d);
(cd) loans or advances made by the Parent Borrower to, to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary; provided that the Borrower will not, nor will it permit any other Loan Party to, enter into or suffer to exist Other Subsidiary Investments at any time during any fiscal year (but calculated exclusive of all Other Subsidiary Investments existing immediately prior to such fiscal year) in an aggregate amount greater than $5,000,000;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) Investments in existence on the date of this Agreement and described in Schedule 6.04;
(g) notes payable or stock or other securities issued by account debtors to the Borrower or any Subsidiary 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) loans or advances made by the Borrower or loans made any Subsidiary to its employees on an arm’s-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to employees a maximum of $2,000,000 in the Parent Borrower and its Subsidiariesaggregate at any one time outstanding;
(fi) existing Investments not otherwise in the form of Swap Agreements permitted under this Agreement and described in Schedule 6.05 heretoby Section 6.07;
(gj) 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;
(k) Investments received in connection with the bona fide settlement disposition of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiaryassets permitted by Section 6.05;
(hl) Investments constituting deposits described in clauses (c) and (d) of the definition of “Permitted Acquisitions; Encumbrances”;
(m) Investments resulting from the 2008 Restructuring provided that ifthe Subsidiaries created to effect the 2008 Restructuring execute and deliver the Subsidiary Guaranty and related documents in accordance with Section 5.09 prior to the effective date of the asset transfers to such Subsidiaries; and
(n) Investments not otherwise permitted by clauses (a) and (c) through (m) above, as a result of a Permitted Acquisitionprovided that at the time such investment is made, (i) a new Domestic Subsidiary all Investments made pursuant to this clause (n) in the aggregate shall be created and such Domestic Subsidiary is a “Significant Subsidiary” not exceed ten percent (10%) of Consolidated Net Worth as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code end of Federal Regulations) or the fiscal quarter ending immediately prior to the fiscal quarter in which such investment is made, (ii) no Default has occurred and is continuing or would arise after giving effect thereto and (iii) with respect to any then existing Domestic Subsidiary such Investment that constitutes an Acquisition (1) the Borrower shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to have satisfied the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under requirements of clauses (ab), (d) through and (he) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount definition of “Permitted Acquisitions” and (2) such Acquisition is not to exceed $500,000,000 in any Person or Personsa Hostile Acquisition.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Parent Borrower or a Subsidiary in the capital stock of its Subsidiariesdate hereof and set forth on Schedule 6.04;
(c) investments by the Borrower and the Subsidiaries in Equity Interests in their respective Subsidiaries, provided that the Borrower and the Subsidiaries shall only transfer cash to Subsidiaries that are not Subsidiary Loan Parties by means of loans or advances in accordance with clause (d) of this Section unless, (i) in the reasonable judgment of senior management of the Borrower, there is a material tax or other material economic or legal disadvantage to the Borrower in structuring such a transfer to a Subsidiary that is not a Subsidiary Loan Party as a loan or advance instead of as an investment in Equity Interests of such Subsidiary, and (ii)(A) Required Lenders give their prior written consent if the amount of the proposed investment in any Subsidiary that is not a Subsidiary Loan Party, together with the aggregate amount of cash invested by Borrower and the other Loan Parties in such Subsidiary after the Effective Date, is equal to or greater than $7,500,000, or (B) the Administrative Agent (as defined in the Credit Agreement) gives its prior written consent pursuant to the analogous provision of the Credit Agreement if the amount of the proposed investment in any Subsidiary that is not a Subsidiary Loan Party, together with the aggregate amount of cash invested by Borrower and the other Loan Parties in such Subsidiary after the Effective Date exceeds $500,000 and is less than $7,500,000; provided that a pro rata portion (in proportion to the aggregate principal amount of the Loans outstanding hereunder relative to the aggregate principal amount of the Loans outstanding under the Credit Agreement) of the fee, if any, paid to the Lenders (as defined in the Credit Agreement) in connection with such written consent, shall also be paid to the Lenders unless such fee paid to the Lenders (as defined in the Credit Agreement) in the aggregate is greater than $0 but does not exceed $10,000, in which case the Lenders shall be paid an aggregate amount equal to such fee;
(d) loans or advances made by the Parent Borrower to, to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary, provided that the Subsidiaries that are not Subsidiary Loan Parties shall not make loans or advances to the Borrower or any Subsidiary Loan Party unless the Indebtedness represented thereby is subordinated to the Obligations on terms reasonably satisfactory to Required Lenders;
(de) Guarantees constituting Indebtedness permitted by Section 6.016.01(a), provided that (i) a Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Subsidiary also has Guaranteed the Obligations pursuant to the Subsidiary 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 a sale, transfer or other disposition of all or substantially all of the assets of such Subsidiary, by way of merger, consolidation or otherwise, or a sale, transfer or other disposition (including, without limitation, by foreclosure or a transfer in lieu of foreclosure) of at least a majority of the voting Equity Interests of such Subsidiary or a direct or indirect parent of such Subsidiary beneficially owning at least a majority of the voting Equity Interests of such Subsidiary, and (ii) the Subsidiaries that are not Subsidiary Loan Parties shall not Guarantee the Indebtedness of the Borrower or any Subsidiary Loan Party;
(ef) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 heretobusiness;
(g) Investments received extensions of trade credit in connection with the bona fide settlement ordinary course of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiarybusiness;
(h) Permitted Acquisitions; provided that ifloans or advances to employees, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 officers or directors of the Code of Federal Regulations) or (ii) Borrower and the Subsidiaries in their capacity as such, in an aggregate principal amount not to exceed $1,000,000 at any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09time outstanding;
(i) Swap Hedging Agreements not entered into for speculative purposespermitted under Section 6.07;
(j) investments constituting non-cash proceeds of any sale, transfer or other disposition permitted by Section 6.05; and
(jk) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof other investments in an aggregate amount not to exceed $500,000,000 in 2,000,000 at any Person time outstanding. Notwithstanding anything to the contrary, the obligations pursuant to Sections 6.04 (d) and (e) shall apply and be effective only to the extent, and at the time, if any, that such obligations would not cause a default under, violate any provision of, require any consent, waiver or Personsapproval under, or otherwise constitute a breach under, the Credit Documents or the Subordinated Debt Documents.
Appears in 1 contract
Samples: Credit Agreement (Knowles Electronics Holdings Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. (a) The Parent Borrower will shall not, and will shall not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to before such merger) any capital stock, evidences Equity Interest in or evidence of indebtedness or other securities security (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans loan or advances advance to, Guarantee any obligations obligation of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(ai) Permitted InvestmentsInvestments and investments in cash;
(bii) investments existing on the date of this Agreement;
(iii) investments by the Parent Borrower and its Subsidiaries in Equity Interests in their respective Subsidiaries (or in any Person that will, upon the making of such investment, become a Subsidiary Subsidiary); provided that the aggregate amount of such investments by the Borrower and its Subsidiaries after the Effective Date in reliance on this clause (iii), taken together with the capital stock aggregate amount of its Subsidiariesloans and advances made by the Borrower to Subsidiaries in reliance on clause (iv), shall not exceed an amount at any time outstanding equal to $60,000,000;
(civ) loans or advances made by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, to any Subsidiary, and loans Subsidiary or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary; provided that the amount of such loans and advances made by the Borrower to Subsidiaries shall be subject to the limitation set forth in clause 6.07(a)(iii) above;
(dv) Guarantees constituting Indebtedness permitted Loans, letters of credit and other extensions of credit by Section 6.01the Bank Subsidiaries in the ordinary course of its business;
(evi) investments received in connection with (A) the bankruptcy, reorganization or recapitalization of, or settlement of delinquent accounts and disputes with, customers and suppliers 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;
(vii) 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;
(viii) 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:
(ix) loans or loans advances to employees made in the ordinary course of business to employees consistent with past practices of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any such Subsidiary;
(hx) Permitted Acquisitions; provided that 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 Subsidiary or in satisfaction of judgments;
(xi) investments in the Borrower;
(xii) 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 Permitted AcquisitionSubsidiary, in each case subject to the limitations set forth in Section 6.07(b); provided, however, that if the Borrower or any Subsidiary shall acquire any Person and such Person shall hold any investment that the Borrower or such Subsidiary would not otherwise be permitted to hold, directly or indirectly, pursuant to this Section 6.7(a), then the Borrower shall (x) promptly notify the Lender that such Person holds such investment, and (y) use its best efforts to liquidate such investment or convert such investment to an investment that the Borrower or such Subsidiary would be permitted to hold pursuant to this Section 6.7(a).
(b) The Borrower shall not, and shall not permit any of its Subsidiaries to make any material acquisition unless (i) a new Domestic Subsidiary immediately before and after giving effect thereto, no Default shall have occurred and be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-Xcontinuing, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) in the case of any then existing Domestic Subsidiary shall become such acquisition of a Significant SubsidiaryPerson, such Domestic acquisition is non-hostile, and (iii) the assets received by the Borrower or its Subsidiary shall thereafter become party to in connection therewith are used or usable in a line of business consistent with the Guarantee Agreement lines of business of the Borrower and its Subsidiaries as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Personshereof.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower Issuers will not, and will not permit any of its their Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee guaranty 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 or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;,
(b) investments by existing on the Parent Borrower or a Subsidiary in Effective Date and set forth on Schedule 6.4 to the capital stock of its SubsidiariesCredit Agreement;
(c) investments by the Issuers and their Subsidiaries in Equity Interests in their respective Subsidiaries; provided the aggregate amount of investments by Subsidiaries in, and loans and advances by Subsidiaries to, and guarantees by Subsidiaries of Indebtedness of, Foreign Subsidiaries (as defined in the Credit Agreement) (including all such investments, loans, advances and guarantees existing on the Effective Date) shall not exceed $5,000,000 at any time outstanding;
(d) loans or advances made by the Parent Borrower toany Issuer to any other Issuer, and Guarantees by the Parent Borrower of obligations of, any Issuer to any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by to any Subsidiary of obligations of, the Parent Borrower Issuer or any other Subsidiary; provided that the amount of such loans and advances made by Subsidiaries to Foreign Subsidiaries shall be subject to the limitation set forth in clause (c) above;
(de) Guarantees guarantees constituting Indebtedness permitted by Section 6.01;4.1; and
(ef) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Personsbusiness.
Appears in 1 contract
Samples: Note Agreement (Coho Energy Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Subsidiary prior to such mergermerger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) cash and Permitted Investments;
(b) Permitted Acquisitions;
(c) investments by the Parent Borrower or a Subsidiary and its Subsidiaries existing on the date hereof in the capital stock of its Subsidiaries;
(cd) investments, loans or advances made by the Parent Borrower to, in or to any Subsidiary and made by any Subsidiary in or to the Borrower or any other Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary for the benefit of obligations of, the Parent Borrower or any other Subsidiary; provided that at the time of any such investment, loan, advance by any Loan Party in, or Guarantee by any Loan Party for the benefit of, any Subsidiary that is not a Loan Party the aggregate amount outstanding of all such investments, loans, advances, and Guarantees shall not exceed 10% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last fiscal quarter included in the financial statements of the Borrower referred to in Section 3.04(a));
(de) the HealthFusion Acquisition;
(f) Guarantees constituting Indebtedness permitted by Section 6.01;
(eg) cash and marketable securities held in Deposit Accounts (as defined in the Security Agreement) or Securities Accounts (as defined in the Security Agreement), which are subject to control agreements to the extent required by the Security Agreement;
(h) investments in negotiable instruments for collection in the ordinary course of business;
(i) advances made in connection with purchases of goods or loans made services in the ordinary course of business;
(j) investments received in settlement of delinquent obligations to the Borrower or any Subsidiary effected in the ordinary course of business or owing to employees the Borrower or any Subsidiary as a result of any bankruptcy or insolvency proceeding involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(hk) Permitted Acquisitions; provided that ifinvestments, as loans, advances and Guarantees existing on the Effective Date and set forth on Schedule 6.04;
(l) investments arising under Swap Agreements entered into in compliance with Section 6.05;
(m) loans or advances made by Borrower or any Subsidiary to its employees in the ordinary course of business consistent for travel and entertainment expenses, relocation costs and similar purposes up to a result maximum of $1,000,000 in the aggregate at any one time outstanding;
(n) investments, loans and advances owned by, and Guarantees made by, any Person existing at the time such Person becomes a Subsidiary of a Borrower or consolidates or merges with a Borrower or any of its Subsidiaries (including in connection with a Permitted Acquisition) so long as such investments, (i) loans, advances and Guarantee were not made in contemplation of such Person becoming a new Domestic Subsidiary shall be created and or of such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) consolidation or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09merger;
(io) Swap Agreements not entered into for speculative purposes; andextensions of trade credit in the ordinary course of business;
(jp) Investmentsany endorsement of a check or other medium of payment for deposit or collection, or any similar transaction, in addition to Investments permitted under clauses each case in the ordinary course of business;
(aq) through any other investment, loan, advance or Guarantee (hother than acquisitions) so long as during the term of this Section 6.05Agreement, but including Investments permitted under Section 6.04(b)at the time of making any such Investment, made after loan, advance or Guarantee, the date hereof in an aggregate amount of all such investments, loans, advances and Guarantees which are outstanding do not exceed an amount equal to exceed $500,000,000 10% of Consolidated Total Assets as of the end of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last fiscal quarter included in any Person or Personsthe financial statements of the Borrower referred to in Section 3.04(a)).
Appears in 1 contract
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 capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of related transactions) any Person or any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to (each such licensee from the Parent Borrower or any of its Affiliatesaction being referred herein as an “Investment”), except:
(a) cash and Permitted Investments;
(b) Permitted Acquisitions;
(i) investments by the Parent Borrower or a Subsidiary existing on the date hereof in the capital stock of its SubsidiariesSubsidiaries and (ii) other Investments described in Schedule 6.04 and extensions, renewals and replacements with a similar type thereof;
(cd) loans or advances Investments made by the Parent Borrower toin or to any Restricted Subsidiary (other than Apollo Global and its subsidiaries, unless Specified Conditions (as defined below) have been satisfied) and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Restricted Subsidiary to, and Guarantees by any Subsidiary of obligations of, in or to the Parent Borrower or any other SubsidiaryRestricted Subsidiary (other than Apollo Global and its subsidiaries, unless Specified Conditions have been satisfied); it being understood that, for purposes of this clause (d), “Specified Conditions” shall be satisfied if (x) Apollo Global and its subsidiaries are re-designated as Restricted Subsidiaries and (y) at the time of the making of such Investment, Apollo Global is a wholly-owned Subsidiary of the Borrower;
(de) Investments made by the Borrower or any of its Restricted Subsidiaries in any Person (other than Apollo Global and its Subsidiaries) that is not a Loan Party; provided, that not more than $75,000,000 in such Investments may be outstanding at any one time;
(f) Investments made by the Borrower or any of its Restricted Subsidiaries in Apollo Global or any of its subsidiaries; provided that (x) the aggregate amount of investments in Equity Interests of, or capital contributions to, Apollo Global and its subsidiaries made by the Borrower and its Restricted Subsidiaries pursuant to this Section 6.04(f) shall not, together with the aggregate amount of asset sales, transfers, leases or dispositions to, Apollo Global and its subsidiaries permitted pursuant to Section 6.03(a)(iii)(A) in each case whether prior to, on or after the Effective Date, exceed $1,000,000,000 and (y) the aggregate amount of the loans or advances to Apollo Global and its subsidiaries by Borrower and its Restricted Subsidiaries plus the aggregate principal amount of Indebtedness of Apollo Global and its subsidiaries guarantied pursuant to clause 6.01(d)(iii) shall not exceed the Maximum Apollo Global Guarantee and Intercompany Loan Amount;
(g) Guarantees constituting Indebtedness permitted by Section 6.01;
(eh) any other Investment (including (x) acquisitions consummated pursuant to this clause (h) hereof (and not Permitted Acquisitions pursuant to clause (b) hereof) and (y) Investments in or to Apollo Global and its subsidiaries in the event the basket therefor in clause (f) above has been fully utilized) so long as the aggregate outstanding amount of all such Investments, when aggregated with the total consideration for acquisitions consummated pursuant to this clause (h) hereof (and not Permitted Acquisitions pursuant to clause (b) hereof), does not exceed $500,000,000; provided, however, that Investments deemed made pursuant to the designation of Apollo Global and its subsidiaries as Unrestricted Subsidiaries pursuant to Section 6.12 hereof shall be excluded when determining basket usage under this clause (h);
(i) any Investment owned by, or committed to be acquired by, Apollo Global, its subsidiaries or any other Person at the time it becomes a Restricted Subsidiary for purposes of this Agreement;
(j) investments in (i) any Equity Interests received in satisfaction or partial satisfaction thereof from financially troubled account debtors and (ii) deposits, prepayments and other credits to suppliers made in the ordinary course of business;
(k) loans and advances or loans to employees of Borrower and its Restricted Subsidiaries made in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate outstanding amount not to exceed $500,000,000 10,000,000;
(l) Investments made after the Effective Date in joint ventures; provided, (i) immediately prior to the making of any Person such Investment, and after giving effect (including pro forma effect) thereto, no Event of Default shall have occurred and be continuing and (ii) all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable laws and in conformity with all authorizations of applicable Governmental Authorities; provided, further, that the aggregate amount of all such Investments in joint ventures pursuant to this clause (l) does not exceed $100,000,000 in the aggregate;
(m) investments constituting Permitted Swap Agreements;
(n) investments arising out of the receipt by the Borrower or Personsany of its Restricted Subsidiaries of non-cash consideration for the sale of assets permitted under Section 6.03;
(o) loans made by the Borrower to officers and employees of the Borrower or its Restricted Subsidiaries, the proceeds of which are used to purchase Borrower’s Equity Interests in an aggregate outstanding principal amount not to exceed $10,000,000; and
(p) to the extent permitted under Section 6.02, Borrower or any Restricted Subsidiary may make (i) deposits in the ordinary course of business consistent with past practices to secure the performance of operating leases and payment of utility contracts, (ii) good faith deposits required in connection with Permitted Acquisitions and joint ventures permitted under this Section 6.04 and (iii) escrowed money for dispositions and Permitted Acquisitions to the extent otherwise permitted hereunder.
Appears in 1 contract
Samples: Credit Agreement (Apollo Group Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Irish Holdco, the Irish Sub Holdco, the Lux Holdco and each Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, (i) purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly owned Restricted Subsidiary prior to such merger) any capital stock, evidences evidence of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or (ii) purchase or otherwise acquire (in one transaction or a series of transactions) substantially all the assets of any Person or any assets of any other Person constituting a business unit or the unit, division, product line (including rights in respect of any licensee under drug or other pharmaceutical product) or line of business of such Person, or (iii) acquire an exclusive long-term license of rights to a trademark license to such licensee from the Parent Borrower drug or other product line of any of its AffiliatesPerson (each, an “Investment”) except:
(a) cash and Permitted Investments;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesPermitted Acquisitions;
(c) loans Investments by the Irish Holdco and its Restricted Subsidiaries existing on the Closing Date and set forth on Schedule 6.04 and any modification, replacement, renewal or advances extension thereof to the extent not involving any additional Investment;
(d) Investments made by the Parent Borrower toIrish Holdco in or to any Restricted Subsidiary and made by any Restricted Subsidiary in or to the Irish Holdco or any other Restricted Subsidiary (including, without limitation, any Intercompany Proceeds Loans) and Guarantees by the Parent Borrower of obligations of, Irish Holdco or any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Restricted Subsidiary of obligations of, the Parent Borrower or of any other Restricted Subsidiary; provided that the amount of any Investment by a Loan Party to a Restricted Subsidiary which is not a Loan Party or constituting a Guarantee of obligations of any Restricted Subsidiary that is not a Loan Party shall not exceed, together with the aggregate amount of all other Investments pursuant to this proviso, and Section 6.04(y) below, $900,000,000 at any time outstanding;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) Investments made as a result of the receipt of non-cash consideration from a Disposition, of any asset in compliance with Section 6.03;
(h) Investments in the form of Swap Agreements permitted by Section 6.05;
(i) payroll, travel and similar advances to directors, officers and employees of the Parent, the Irish Holdco or loans any Restricted Subsidiary that are made in the ordinary course of business;
(j) extensions of trade credit in the ordinary course of business;
(k) Investments to the extent the consideration paid therefor consists of Equity Interests (other than Disqualified Equity Interests) of the Parent;
(l) Investments of any Person in existence at the time such Person becomes a Restricted Subsidiary; provided such Investment was not made in connection with or anticipation of such Person becoming a Restricted Subsidiary and any modification, replacement, renewal or extension thereof;
(m) transfers of rights with respect to one or more products or technologies under development to joint ventures with third parties or to other entities where the Irish Holdco or a Restricted Subsidiary retains rights to acquire such joint ventures or other entities or otherwise repurchase such products or technologies;
(n) any customary upfront milestone, marketing or other funding payment in the ordinary course of business to employees of another Person in connection with obtaining a right to receive royalty or other payments in the Parent Borrower and its Subsidiariesfuture;
(fo) existing Investments not otherwise permitted under this Agreement made in Therapeutics pursuant to the Acquisition Documentation and described as contemplated in Schedule 6.05 heretothe Structure Paper;
(gp) Investments received in connection with Exclusive Licenses from a Foreign Subsidiary to the bona fide settlement Irish Holdco or a Domestic Subsidiary of any defaulted Indebtedness rights to a drug or other liability owed to the Parent Borrower pharmaceutical products, diagnostics, delivery technologies, medical devices or any Subsidiarybiotechnology businesses acquired by such Foreign Subsidiary in an acquisition permitted by Section 6.03;
(hq) Investments in joint ventures (including JV Subsidiaries) and acquisitions of Equity Interests that would constitute Permitted AcquisitionsAcquisitions but for the fact that Persons in which such Equity Interests are acquired do not become wholly owned Subsidiaries of the Irish Holdco; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 the sum of the Code aggregate amount of Federal Regulationssuch Investments, plus the aggregate consideration paid in all such acquisitions, made under this clause (q) or shall not exceed $100,000,000 at any time outstanding;
(iir) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor [Reserved];
(s) [Reserved];
(t) Investments consisting of Liens made in accordance with Section 5.09;
6.02; (iu) Swap Agreements not entered into for speculative purposesloans or advances to directors and employees of the Parent, the Irish Holdco or any Restricted Subsidiary made in the ordinary course of business; and
(j) Investmentsprovided that the aggregate outstanding amount of such loans and advances, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted when aggregated with the Guarantees then outstanding under Section 6.04(b6.01(l), made after the date hereof in an aggregate amount at any time shall not to exceed $500,000,000 in any Person or Persons.20,000,000;
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and 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 capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Parent Borrower or a Subsidiary in Effective Date and set forth on Schedule 6.04 to the capital stock of its SubsidiariesDisclosure Letter;
(c) investments by the Borrower and the Restricted Subsidiaries in Equity Interests in Borrower or any Restricted Subsidiary and investments by Unrestricted Subsidiaries in Equity Interests of Borrower or any Restricted Subsidiary;
(d) loans or advances made by the Parent Borrower to, or any Restricted Subsidiary to Borrower or any Restricted Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Unrestricted Subsidiary to, and Guarantees by any Subsidiary of obligations ofto Holdings, the Parent Borrower or any other Restricted Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances Guarantees of Indebtedness permitted under Section 6.01 and Guarantees of Permitted Convertible Notes made in compliance with the definition of Permitted Convertible Notes;
(f) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) Permitted Acquisitions;
(h) any investments in or loans to any other Person received as noncash consideration for sales, transfers, leases and other dispositions permitted by Section 6.03 or 6.05;
(i) Guarantees and indemnities by the Borrower and the Restricted Subsidiaries of leases and other agreements entered into by any Restricted Subsidiary;
(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 to employees of consistent with prudent business practice and not exceeding $10,000,000 in the Parent Borrower and its Subsidiariesaggregate outstanding at any one time;
(fm) existing Investments not otherwise permitted under this Agreement investments in or acquisitions of stock, obligations or securities received in settlement of debts created in the ordinary course of business and described owing to the Borrower or any Restricted Subsidiary or in Schedule 6.05 heretosatisfaction of judgments;
(gn) Investments received investments in connection with the bona fide settlement form of any defaulted Indebtedness or other liability owed to Swap Agreements permitted under Section 6.06;
(o) investments, loans, advances, guarantees and acquisitions resulting from a foreclosure by the Parent Borrower or any SubsidiaryRestricted Subsidiary with respect to any secured investment or other transfer of title with respect to any secured investment in default;
(hp) Permitted Acquisitionsinvestments, loans, advances, guarantees and acquisitions the consideration for which consists solely of shares of common stock of Holdings;
(q) the licensing from other Persons by the Borrower and the Restricted Subsidiaries of intellectual property in accordance with normal industry practice; provided that if, as a result if such licensing involves the effective acquisition of a Permitted Acquisition, (i) a new Domestic Subsidiary shall any business of another Person it must be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with otherwise permitted by this Section 5.096.04;
(ir) Swap Agreements exchanges of Permitted Convertible Notes, whether or not entered into for speculative purposespursuant to such Permitted Convertible Notes; and
(js) Investmentsany other investment, in addition to Investments permitted under clauses loan or advance (aother than acquisitions) through (h) so long as the aggregate amount of all such investments, loans and advances does not exceed $50,000,000 during the term of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or PersonsAgreement.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactionstrans- actions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Parent Borrower or a Subsidiary in the capital stock of its Subsidiariesdate hereof and set forth on Schedule 6.04;
(c) investments by the Borrower and the Subsidiaries in Equity Interests in their respective wholly owned Subsidiaries that are Loan Parties immediately prior to such investment;
(d) loans or advances made by the Parent Borrower to, to any wholly owned Subsidiary that is a Loan Party and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any such Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiarywholly owned Subsidiary that is a Loan Party;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
, PROVIDED that (ei) advances no Subsidiary shall Guarantee the Subordinated Debt unless (A) such Subsidiary also has Guaranteed the Obligations pursuant to the applicable 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 (including through merger or loans consolidation) of the Equity Interests, or all or substantially all the assets, of the Loan Party granting such Guarantee if such sale is made in compliance with the ordinary course of business to employees terms of the Parent Borrower Subordinated Debt Documents, and its Subsidiaries(ii) the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (h) below;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 heretoPermitted Acquisitions;
(g) Investments the Dickxxx Xxxuisition, PROVIDED that (i) no Default shall have occurred and be continuing, (ii) such acquisition shall have been consummated in accordance with applicable law and the Dickxxx Xxxuisition Agreement for aggregate consideration not in excess of the Dickxxx Purchase Price (without giving effect to any amendment, waiver or other modification thereto not approved by the Required Lenders), (iii) the Lenders shall have received in connection a pro forma consolidated balance sheet of the Borrower after giving effect to the Dickxxx Xxxuisition, which balance sheet shall not be materially inconsistent with the bona fide settlement forecasts previously provided to the Lenders, (iv) the Lenders shall be reasonably satisfied as to the amount and nature of any defaulted Indebtedness or other liability owed environmental and employee health and safety exposures to which the Borrower and the Subsidiaries may be subject after giving effect to the Parent Dickxxx Xxxuisition, and with the plans of the Borrower or with respect thereto, and, to the extent requested by the Administrative Agent, the Lenders shall have received environmental assessments (including, if applicable, Phase I reports) satisfactory to the Administrative Agent from an environmental consulting firm satisfactory to the Administrative Agent, (v) the Lenders shall have received a certificate from the Borrower's Chief Financial Officer, in form and substance satisfactory to the Administrative Agent, confirming (x) that the Borrower and the Subsidiaries, on a consolidated basis, are solvent and will be solvent after giving effect to the Dickxxx Acquisition and that the Borrower and the Subsidiaries, on a consolidated basis, will be able to pay their debts and liabilities as they become due and will not be left with unreasonably small capital with which to engage in its business and (y) compliance with this proviso and (vi) delivery of any Subsidiaryinformation requested by the Administrative Agent with respect to the Dickxxx Xxxuisition (other than audited financial statements);
(h) Permitted Acquisitions; provided that ifinvestments in and loans and advances to non-wholly owned Subsidiaries (other than Foreign Subsidiaries) and Joint Ventures in an aggregate amount, as on a result of a Permitted Acquisitioncumulative basis, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party subsequent to the Guarantee Agreement as a Guarantor in accordance with Section 5.09Closing Date, not exceeding $15,000,000;
(i) Swap Agreements investments constituting Capital Expenditures permitted by Section 6.16; PROVIDED that investments permitted by this clause (i) to Foreign Subsidiaries or investments otherwise made in countries other than the United States shall be permitted only if (x) such investment is to a Canadian Foreign Subsidiary or is otherwise made in Canada in an aggregate amount, on a cumulative basis, subsequent to the Closing Date, not entered into for speculative purposesexceeding $35,000,000 or (y) such investment is to a Mexican Foreign Subsidiary or is otherwise made in Mexico in an aggregate amount, on a cumulative basis, subsequent to the Closing Date, not exceeding $30,000,000;
(j) other loans, advances and investments, not to exceed $10,000,000 at any time outstanding; and
(jk) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments Hedging Agreements permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons6.07.
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 Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness Indebtedness or other securities (including 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 or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments existing on the date hereof and set forth on Schedule 6.04;
(c) investments by the Parent Borrower or a Subsidiary Holdings and its Subsidiaries in the capital stock of its Equity Interests in their respective Subsidiaries;
(cd) loans or advances made by the Parent Borrower to, Holdings to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower to Holdings or any other Subsidiary;
(de) Guarantees constituting by Holdings of Indebtedness and other obligations of any Subsidiary and by any Subsidiary of Indebtedness and other obligations of (i) so long as such Subsidiary also guarantees the Obligations on a pari passu basis, Holdings or (ii) any other Subsidiary; provided that no Eckerd Company shall be permitted by Section 6.01to guarantee any Indebtedness or other obligations of Holdings or any other Subsidiary (other than an Eckerd Company) unless such Eckerd Company also guarantees the Obligations on a pari passu basis;
(ef) advances investments received in connection with the bankruptcy or loans made reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business to employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 heretobusiness;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;Permitted Acquisitions; and
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof other investments in an aggregate amount not to exceed exceeding $500,000,000 in 25,000,000 at any Person or Personstime.
Appears in 1 contract
Samples: Credit Agreement (J C Penney Co Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Neither Holdings or the Borrower will, nor will not, and will not they permit any of its the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted InvestmentsAcquisitions and the AmSan Acquisition; provided that the aggregate cash consideration paid or required to be paid by the Borrower or a wholly owned Subsidiary in connection with each Permitted Acquisition does not exceed the sum of (A) Retained Excess Cash Flow for the fiscal year ended immediately prior to the date of such Permitted Acquisition (to the extent not previously applied to repurchase Subordinated Debt, to make Permitted Acquisitions or to make Capital Expenditures), plus (B) cash generated in the ordinary course of the business of the Borrower and the Subsidiaries, plus (C) the Net Proceeds from any issuance of Equity Interests of Holdings (other than in connection with the Initial Public Offering) during the period of four consecutive fiscal quarters ended immediately prior to the date of such Permitted Acquisition (to the extent not previously applied to repurchase Subordinated Debt, to make Permitted Acquisitions, to make Capital Expenditures or to make investments under Section 6.04(m)), plus (D) (i) borrowings under the Revolving Facility in an amount equal to (x) $70,000,000 (plus the amount of any Incremental Revolving Commitments), minus (y) the aggregate principal amount of Revolving Loans outstanding immediately prior to the date of such Permitted Acquisition the proceeds of which were applied previously to finance Permitted Acquisitions, plus (E) the proceeds from any Incremental Extensions of Credit (to the extent not previously applied to make Permitted Acquisitions or to prepay Revolving Loans), plus (F) in the event that, on a Pro Forma Basis as of the last day of most recently ended fiscal quarter of the Borrower for which financial statements are available, the Net Leverage Ratio is more than 0.25 below the maximum permitted Net Leverage Ratio as of the end of such fiscal quarter, as set forth in Section 6.13, the Net Proceeds of Additional Senior Subordinated Notes;
(b) investments by the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesPermitted Investments;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by Holdings, the Borrower and the Subsidiaries in Equity Interests in their respective subsidiaries; provided that (i) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Collateral Agreement (subject to the limitations applicable to Equity Interests of a Foreign Subsidiary or a Joint Venture referred to in the definition of 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, Subsidiaries that are not Loan Parties (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $20,000,000 at any time outstanding;
(e) loans or advances made by Holdings or the Parent Borrower to, to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary; provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Collateral Agreement and (ii) the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (d)(ii) above;
(df) Guarantees constituting Indebtedness permitted by Section 6.01; provided that (i) a Subsidiary shall not Guarantee the Subordinated Debt unless (A) such Subsidiary also has Guaranteed the Obligations pursuant to the Collateral 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 (ii) the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (d)(ii) above;
(eg) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) receivables owing to the Borrower or a Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as the Borrower or any such Subsidiary deems reasonable under the circumstances;
(i) investments consisting of Equity Interests, obligations, securities or other property received in settlement of delinquent accounts in the ordinary course of business and owing to the Borrower or any Subsidiary or in satisfaction of judgments;
(j) 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;
(k) loans or loans advances to employees made in the ordinary course of business to employees of the Parent Borrower and its Subsidiariesor a Subsidiary not exceeding $1,000,000 in the aggregate outstanding at any one time;
(fl) existing Investments not otherwise investments in the form of Swap Agreements permitted under this Agreement and described in Schedule 6.05 heretoSection 6.07;
(gm) Investments received in connection with investments by the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
Subsidiary financed with the Net Proceeds from any issuance of Equity Interests of Holdings during the period of four consecutive fiscal quarters ended immediately prior to the date of such investment (h) to the extent not previously applied to repurchase Subordinated Debt, to make Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, to make Capital Expenditures or to make investments under this clause (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposesm)); and
(jn) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof other investments in an aggregate amount, as valued at cost at the time each such investment is made, not exceeding $30,000,000 in the aggregate for all such investments made from and after the Effective Date plus an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such investment (which amount shall not to exceed $500,000,000 in any Person or Personsthe amount of such investment valued at cost at the time such investment was made).
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent 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 or amalgamation with any Person that was not a wholly owned Loan Party and a Wholly Owned Subsidiary of the Company prior to such mergermerger or amalgamation) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (whether through purchase of assets, merger, amalgamation or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesotherwise) (collectively, “Investments”), except:
(a) Permitted Investments, subject to, in the case of Loan Parties, control agreements in favor of the Administrative Agent (in each case for the benefit of the Secured Parties) or otherwise subject to a perfected security interest in favor of the Administrative Agent (in each case for the benefit of the Secured Parties);
(b) investments by (and commitments (including consummation of any “put” arrangement in connection therewith) in respect thereof) in existence on the Parent Borrower or a Subsidiary in the capital stock of its SubsidiariesFourth Restatement Date and described on Schedule 6.04 and renewals, replacements and extensions thereof;
(c) investments made by (i) any Borrower to any other Borrower, any Restricted Subsidiary, any Specified Excluded Subsidiary or any Joint Venture or (ii) any Subsidiary to any Borrower, any other Restricted Subsidiary, any Specified Excluded Subsidiary or any Joint Venture; provided that in the case of any investments made pursuant to this paragraph (c) after the Fourth Restatement Date by Loan Parties in Subsidiaries that are not Loan Parties or are Specified Excluded Subsidiaries or in Joint Ventures, 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 $175,000,000 or (ii) Liquidity shall be at least $330,000,000, including Aggregate Availability of at least $235,000,000;
(d) loans or advances made by the Parent (i) any Borrower to, and Guarantees by the Parent Borrower of obligations ofto any other Borrower, any Restricted Subsidiary, any Specified Excluded Subsidiary or any Joint Venture or (ii) any Restricted Subsidiary to any Borrower, any other Restricted Subsidiary, any Specified Excluded Subsidiary or any Joint Venture, provided that in the case of any loans and loans or advances made by any Subsidiary toLoan Parties to Restricted Subsidiaries that are not Loan Parties or to Specified Excluded Subsidiaries or to Joint Ventures, both immediately before and Guarantees by any Subsidiary immediately after giving pro forma effect thereto, no Default or Event of obligations ofDefault 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 $175,000,000 or (ii) Liquidity shall be at least $330,000,000, the Parent Borrower or any other Subsidiaryincluding Aggregate Availability of at least $235,000,000;
(de) Guarantees constituting Indebtedness permitted by Section 6.01, provided that in the case of any Indebtedness of Restricted Subsidiaries that are not Loan Parties, Indebtedness of Specified Excluded Subsidiaries or Indebtedness of Joint Ventures that, in each case, is Guaranteed by any Loan 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 $175,000,000 or (ii) Liquidity shall be at least $330,000,000, including Aggregate Availability of at least $235,000,000;
(f) investments made by any Loan Party in any Restricted Subsidiary that is not a Loan Party or which is a Specified Excluded Subsidiary or in a Joint Venture, in each case of the types described in paragraphs (c), (d) and (e) advances 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 5 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 Restricted 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 to employees of in connection with the Parent Borrower Company’s and its Restricted 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 5 Minimum Aggregate Availability Period shall be in effect.
(h) loans or advances made by any Loan Party and the Restricted 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;
(fi) existing Investments not otherwise permitted under this Agreement subject to the applicable provisions of any Security Agreements (including Sections 4.2(a) and described 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 Schedule 6.05 heretothe ordinary course of business, consistent with past practices;
(gj) Investments 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 Restricted Subsidiary or consolidates or merges with a Borrower or any Restricted Subsidiary (including in connection with a Permitted Acquisition), so long as such investments were not made in contemplation of such Person becoming a Restricted Subsidiary or of such merger;
(l) investments received in connection with the bona fide settlement 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 and other Investments subject to satisfaction of the Payment Conditions;
(o) [reserved];
(p) option, warrant and similar derivative transactions entered into by the Company in connection with a Permitted Convertible Notes Offering;
(q) Guarantees by any defaulted Indebtedness or other liability owed to the Parent Borrower or any SubsidiaryRestricted Subsidiary of leases or other obligations of any Borrower or any Restricted Subsidiary that do not constitute Indebtedness, in each case entered into in the ordinary course of business, and performance guarantees by the Borrower or any of its Restricted Subsidiaries entered into in connection with a Permitted Bundled Contract Sale, and solely to the extent constituting a Standard Undertaking in respect thereof;
(hr) Permitted Acquisitionsinvestments made by Loan Parties in Restricted Subsidiaries that are not Loan Parties or in Specified Excluded Subsidiaries; provided that if, as a result such investments are part of a Permitted Acquisitionseries of substantially simultaneous investments by Loan Parties in other Loan Parties that results in substantially all the proceeds of the initial investment being invested, loaned or advanced in one or more Loan Parties;
(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) a new Domestic Subsidiary no Default or Event of Default shall have occurred and be created continuing and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) no Level 5 Minimum Aggregate Availability Period shall be in effect; provided further that the aggregate principal amount of all Investments permitted by this paragraph (s) shall not exceed $150,000,000 in any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to fiscal year of the Guarantee Agreement as a Guarantor in accordance with Section 5.09;Company; and
(i) Swap Agreements not entered into for speculative purposes; and
The Captive Insurance Subsidiary Letter of Credit, (jii) Investments, in addition to Investments permitted under clauses the Captive Insurance Subsidiary Guarantees and (aiii) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or PersonsCaptive Insurance Subsidiary Contribution.
Appears in 1 contract
Samples: Credit Agreement (ODP Corp)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower No Loan Party will notform any subsidiary after the Effective Date, and will not permit any of its Subsidiaries to, or purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary Loan Party prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) Equity Interest 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 (whether through purchase of assets, merger or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesotherwise), except:
(a) Permitted Investments, subject to control agreements in favor of the Administrative Agent for the benefit of the Lenders or otherwise subject to a perfected security interest in favor of the Administrative Agent for the benefit of the Lenders;
(b) investments in existence on the date hereof and described in Schedule 6.04;
(c) investments by the Parent Borrower or a Subsidiary and the Subsidiaries in the capital stock of its Equity Interests in their respective Subsidiaries;
(cd) loans or advances made by the Parent Borrower to, to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, to the Parent Borrower or any other Subsidiary, provided that any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Security Agreement;
(de) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) loans or advances to holders (or loans made Affiliates of holders) of Equity Interests in the Borrower;
(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 to employees of the Parent Borrower and its Subsidiariesbusiness, consistent with past practices;
(fh) existing Investments not otherwise investments in the form of Swap Agreements permitted under this Agreement and described in Schedule 6.05 heretoby Section 6.07;
(gi) Investments 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 bona fide settlement dispositions 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;” and
(l) investments in connection with acquisition of the business or business unit or Equity Interests of any defaulted Indebtedness Person or other liability owed to the Parent merger of any Person into the Borrower or any Subsidiary;
(h) Permitted Acquisitions; other Loan Party, provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary the aggregate fair market value thereof shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 not exceed $8,000,000 during any fiscal year of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or PersonsBorrower.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by Permitted Acquisitions, provided that the Parent Borrower or is in compliance, on a Subsidiary in Pro Forma Basis after giving effect to such Permitted Acquisition as of the capital stock last day of its Subsidiariesthe most-recently ended fiscal quarter of the Borrower, with the Financial Covenants;
(c) investments existing on the date hereof and set forth on Schedule 6.04;
(d) investments by the Borrower and any Subsidiary in Equity Interests of any Subsidiary;
(e) (i) loans or advances made by the Parent Borrower to, to any Subsidiary and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary toto the Borrower or any other Subsidiary, provided that any such loans and Guarantees advances made by the Borrower shall be evidenced by a promissory note (which may be a master note with varying principal amount) pledged pursuant to the Collateral Agreement to the extent required by the Collateral and Guarantee Requirement and %4. deposits by the Borrower with any Subsidiary or by any Subsidiary of obligations of, with the Parent Borrower or any other Subsidiary;
(df) Guarantees constituting of (i). Indebtedness of the Borrower or any Subsidiary that are permitted by Section 6.016.01 and (ii) the type described in clause (c) of the definition thereof;
(eg) loans or advances to employees of the Borrower or loans any Subsidiary made in the ordinary course of business to employees of the Parent Borrower and its Subsidiariesor 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 shall exceed $1,000,000 in the aggregate outstanding at any time (determined without regard to any write-downs or write-offs of such loans or advances);
(fh) existing Investments not otherwise permitted under this Agreement payroll, travel and described 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 Schedule 6.05 heretothe ordinary course of business;
(gi) Investments investments received in connection with the bona fide bankruptcy or reorganization of, or settlement of any defaulted Indebtedness or other liability owed to delinquent accounts and disputes with, customers and suppliers, in each case in the Parent Borrower or any Subsidiaryordinary course of business;
(hj) Permitted Acquisitions; provided that if, as a result investments in the form of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes;
(k) investments of any Person existing at the time such Person becomes a Subsidiary or consolidates or merges with the Borrower or any Subsidiary (including in connection with a Permitted Acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger;
(l) investments resulting from pledges or deposits described in clause (c) or (d) of the definition of the term “Permitted Encumbrance”;
(m) investments received in connection with the disposition of any asset permitted by Section 6.05;
(n) receivables or other trade payables owing to the Borrower or a Subsidiary if created or acquired in the ordinary course of business and 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, loans and guarantees (i) arising from products and services offered by Bank Regulated Subsidiaries or Broker Dealer Regulated Subsidiaries, (ii) made by Bank Regulated Subsidiaries or Broker Dealer Regulated Subsidiaries and (iii) any deposits or assets pledged in connection with clearing and clearing-related activities, in each of clauses (i), (ii) and (iii) in the ordinary course of business, including margin loans, Stock Loans, mortgages, home equity lines of credit, clearing and clearing-related activities, other customer financings and investments made pursuant to the Community Reinvestment Act;
(p) [Reserved];
(q) investments acquired as a capital contribution to, or in exchange for, or out of the proceeds of a substantially concurrent offering of, Equity Interests (other than Disqualified Equity Interests) of the Borrower; and
(jr) Investmentsother investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after loans and advances by the date hereof Borrower or any Subsidiary in an aggregate amount, as valued at cost as of the date of each such investment, loan or advance is made and including all related commitments for future investments, loans or advances (and the principal amount not of any Indebtedness that is assumed or otherwise incurred in connection with such investment, loan or advance), provided that no investments, loans or advances may be made under this clause (r) if, after giving effect to such investment, loan or advance, the aggregate amount of investments, loans and advances made or committed to be made from and after the Effective Date under this clause (r) would exceed $500,000,000 the sum of (i) 5.0% of Consolidated Net Worth as of such date, (ii) the maximum amount of Restricted Payments that may be made under Section 6.08(a) as of such date and (iii) without duplication of any amounts included in clause (q) above and Section 6.08(a), an amount equal to any Person returns of capital or Personssale proceeds actually received in cash in respect of any such investments.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (excluding the Borrower), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person (excluding the Borrower) constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliates(collectively, "Investments"), except:
(a) Permitted InvestmentsInvestments made prior to the Amendment and Restatement Effective Date and Investments made pursuant to agreements entered into before such date (and any extensions, renewals and replacements thereof);
(b) investments Investments contemplated by the Parent agreements attached to the Form S-1/A, dated February 7, 2001, as amended, of the Borrower or a Subsidiary in extensions, renewals or replacements of such agreements on terms not materially less favorable to the capital stock of Borrower and its Subsidiaries;
(c) loans or advances made Guarantee obligations permitted by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other SubsidiarySection 6.02;
(d) Guarantees constituting Indebtedness permitted by Section 6.01loans and advances to employees of the Borrower or any Subsidiary in the ordinary course of business (including for travel, entertainment and relocation expenses);
(e) advances or loans intercompany Investments made in the ordinary course of business to employees business, including, without limitation, Investments that result from operation of the Parent Borrower Borrower's cash management systems operated for itself and its Subsidiaries;
(f) existing intercompany Investments by the Borrower or any Subsidiary in the Borrower or any Person that, at and prior to such investment, is a Subsidiary Guarantor or, to the extent reasonably necessary to consummate any proposed Intellectual Property or Receivables securitization, a Securitization Subsidiary;
(i) Investments by any Foreign Subsidiary in any other Foreign Subsidiary and (ii) Investments by any Domestic Subsidiary in any other Domestic Subsidiary;
(h) after the Amendment and Restatement Effective Date, Investments by the Borrower or any Subsidiary in joint ventures in an aggregate amount not otherwise to exceed, in any fiscal year of the Borrower, the sum of (A) $40,000,000, (B) up to $10,000,000 unutilized investment capacity from the immediately preceding fiscal year, and (C) up to $5,000,000 investment capacity from the immediately succeeding fiscal year; provided, that the baskets set forth above may be replenished with respect to any fiscal year of the Borrower, up to the sum of the limits set forth in clauses (A), (B) and (C), by the amount of Net Cash Proceeds realized from the sale of any joint venture interest (the Investment in which was permitted under this Agreement and described clause (h)) or distributions or loan repayments thereon, in Schedule 6.05 heretoeach case, in such fiscal year of the Borrower;
(gi) after the Amendment and Restatement Effective Date, Investments, either directly or through a Subsidiary, by the Borrower or any Subsidiary Guarantor in any other Subsidiary that is not a Subsidiary Guarantor (other than pursuant to (e) or (f) above or (l) below) in an aggregate amount not to exceed, in any fiscal year of the Borrower, the sum of (A) $125,000,000, (B) up to $20,000,000 unutilized investment capacity from the immediately preceding fiscal year, and (C) up to $10,000,000 investment capacity from the immediately succeeding fiscal year; provided, that the baskets set forth above may be replenished with respect to any fiscal year of the Borrower, up to the sum of the limits set forth in clauses (A), (B) and (C), by the amount of Net Cash Proceeds realized from the sale of any interest in any Subsidiary that is not a Subsidiary Guarantor (the Investment in which was permitted under this clause (i)) or distributions or loan repayments therefrom, in each case, in such fiscal year of the Borrower;
(j) after the Amendment and Restatement Effective Date, in addition to other Investments expressly permitted by this Section, Investments by the Borrower or any of its Subsidiaries in any Person in an aggregate amount (valued at cost) not to exceed $105,000,000 cash purchase price paid during the term of this Agreement; provided, that the basket set forth above may be replenished, up to the original limit of $105,000,000, by the amount of any Net Cash Proceeds realized during such term by sale or other disposition of such Investments;
(k) Investments by the Borrower or any Subsidiary to the extent such Investments are acquired by contribution of Intellectual Property (together with Intellectual Property licensed prior to the Amendment and Restatement Effective Date for use in joint development) for products not sold as of the Amendment and Restatement Effective Date;
(l) Investments by the Borrower or any Subsidiary Guarantor in a note payable to the Borrower or a Subsidiary Guarantor issued by a Subsidiary in exchange for the grant of a license for Intellectual Property;
(m) trade receivables and Investments received in connection with the bona fide compromise and settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposesthereof; and
(jn) Investments, in addition Investments to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof fund liquidation and similar expenses related to FiNET Technologies or LD Fiber Optics LLC in an aggregate amount not to exceed $500,000,000 in any Person or Persons25,000,000.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Facility Agreement (Agere Systems Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, 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 transactionstransactions (including pursuant to any merger)) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments by existing on the Parent Borrower or a Subsidiary date hereof and set forth in the capital stock of its SubsidiariesSchedule 7.4;
(c) loans or advances investments made (i) by the Parent Borrower to, and Guarantees by in the Parent Borrower equity securities of obligations of, any wholly-owned Domestic Subsidiary, and loans or advances made (ii) by any wholly-owned Domestic Subsidiary to, in the equity securities of any other wholly-owned Domestic Subsidiary and Guarantees (iii) by any wholly-owned Foreign Subsidiary in the equity securities of obligations of, the Parent Borrower or any other wholly-owned Subsidiary;
(d) Guarantees constituting Indebtedness permitted loans or advances made (i) by Section 6.01;the Borrower to any wholly-owned Domestic Subsidiary, (ii) by any wholly-owned Domestic Subsidiary to the Borrower or any wholly-owned Domestic Subsidiary, and (iii) by the Borrower or any Subsidiary Guarantor to any Foreign Subsidiary; provided that (A) such loans or advances shall be repayable on demand, (B) at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (C) the outstanding principal amount of loans and advances described in clause (iii) shall not exceed $20,000,000 outstanding at any time, (D) at such time as the aggregate amount of loans and advances described in
(e) advances acquisitions made by the Borrower from any Domestic Subsidiary and made by any Domestic Subsidiary from the Borrower or any other Domestic Subsidiary;
(f) investments consisting of loans to employees of the Borrower or any of the Subsidiaries made in the ordinary course of business to employees business, provided that at the time of the Parent Borrower such loans and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement immediately after giving effect thereto no Default shall have occurred and described in Schedule 6.05 heretobe continuing;
(g) Investments received investments consisting of minority interests in connection with substantially the bona fide settlement same or a related business to that of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof Subsidiaries in an aggregate amount not to exceed $500,000,000 10,000,000, provided that at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing;
(h) investments in shares of an Investment Company for which a Subsidiary is a principal underwriter named in such Investment Company's registration statement under the 1940 Act, provided that (i) such shares are acquired by such Subsidiary prior to the public offering of such Investment Company's shares, (ii) such shares are acquired by such Subsidiary solely for purposes of enabling such Investment Company to satisfy the net worth requirement of Section 14(a)(1) of the 1940 Act, and (iii) the amount paid for such shares is limited to the amount necessary to enable such Investment Company to satisfy the net worth requirement of Section 14(a)(1) of the 1940 Act plus an additional $10,000,000 in the aggregate for all such investments, it being understood that nothing herein shall require the sale of any such shares;
(i) investments in shares of open-end management Investment Companies, provided that after giving effect to any such investment, the consideration paid for such shares, when aggregated with the consideration paid for all other such shares then held by the Borrower and the Subsidiaries, shall not exceed 10% of the value of Consolidated Total Assets as at such time of such investment;
(j) in addition to investments permitted by subsection (c) above, capital contributions by the Borrower or any Subsidiary thereof to Exempt Subsidiaries (other than a Subsidiary of the Borrower that is an Exempt Subsidiary solely because of -67- 73 the applicability of clause (iii) of the definition of "Exempt Subsidiary"), provided that (i) at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, and (ii) the amount of any such investment shall not exceed the amount necessary to meet the net capital requirements applicable to such Exempt Subsidiaries;
(k) acquisitions by the Borrower or any Subsidiary of rights under a contract or group of related contracts with a customer that had previously been a party to a similar contract or group of contracts with another Person with respect to which the Borrower or Personssuch Subsidiary has agreed to pay a fee to such Person upon the successful negotiation, execution and delivery of a replacement contract or group of contracts with such customer within a specified period of time provided, that (i) at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (ii) the Leverage Ratio on a pro forma basis for the period of four consecutive quarters immediately succeeding the date on which such rights are acquired is less than 3.00:1.00 and (iii) the Administrative Agent and the Lenders shall have received a certificate (in form and substance satisfactory to the Administrative Agent) of a Financial Officer of the Borrower to the foregoing effect, setting forth calculations in reasonable detail; and
(l) in addition to the acquisition of rights described in subsection (g) above, other investments, loans, advances, Guarantees and acquisitions, provided that (i) at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing and (ii) in the case of an acquisition financed in whole or in part with the proceeds of Loans, the conditions set forth in Section 5.2 shall have been satisfied.
Appears in 1 contract
Samples: Credit Agreement (Bisys Group Inc)
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stockEquity Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Investments held by the Borrower and its Subsidiaries in the form of Permitted Investments;Investments or marketable securities made in accordance with investment policies approved by the Board of Directors of the Borrower or its Subsidiaries, provided that all investments made by any Insurance Subsidiaries are in compliance with all requirements of applicable laws and regulations, including without limitation all requirements of all applicable Supervisory Authorities.
(b) investments by advances to officers, directors and employees of the Parent Borrower or a Subsidiary and its Subsidiaries in the capital stock ordinary course of its Subsidiariesbusiness for travel, entertainment, relocation and analogous ordinary business purposes and that are not material in the aggregate;
(c) loans or advances made by Investments of the Parent Borrower to, in any Wholly Owned Subsidiary and Guarantees by the Parent Borrower Investments of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, in the Parent Borrower or any other in a Wholly Owned Subsidiary;
(d) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(e) Guarantees constituting Indebtedness permitted by Section 6.01;
(ef) advances or loans made in the ordinary course of business to employees Investments of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 heretoa FHLB that are required in order to permit the Borrower to borrow from such FHLB;
(g) Other Investments not exceeding $10,000,000 in the aggregate amount outstanding at any time (and for purposes of determining compliance with this clause (g), the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment but giving effect to any returns or distributions received in connection cash with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiaryrespect thereto);
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;and
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after existing on the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Personsand described on Schedule 6.04(i).
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Neither Holdings or the Borrower will, nor will not, and will not they permit any of its the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its Affiliatesunit, except:
(a) Permitted Investments;
(b) investments Acquisitions and the AmSan Acquisition; PROVIDED that the aggregate cash consideration paid or required to be paid by the Parent Borrower or a wholly owned Subsidiary in connection with each Permitted Acquisition does not exceed the capital stock sum of its Subsidiaries;
(cA) loans Retained Excess Cash Flow for the fiscal year ended immediately prior to the date of such Permitted Acquisition (to the extent not previously applied to repurchase Subordinated Debt, to make Permitted Acquisitions or advances made by the Parent Borrower toto make Capital Expenditures), and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Subsidiary;
plus (dB) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) advances or loans made cash generated in the ordinary course of the business to employees of the Parent Borrower and its the Subsidiaries;
, plus (fC) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
the Net Proceeds from any issuance of Equity Interests of Holdings (g) Investments received other than in connection with the bona fide settlement Initial Public Offering) during the period of any defaulted Indebtedness or other liability owed four consecutive fiscal quarters ended immediately prior to the Parent Borrower or any Subsidiary;
date of such Permitted Acquisition (h) to the extent not previously applied to repurchase Subordinated Debt, to make Permitted Acquisitions; provided that if, as a result of a Permitted Acquisitionto make Capital Expenditures or to make investments under Section 6.04(m)), plus (D) (i) borrowings under the Revolving Facility in an amount equal to (x) $70,000,000 (plus the amount of any Incremental Revolving Commitments), minus (y) the aggregate principal amount of Revolving Loans outstanding immediately prior to the date of such Permitted Acquisition the proceeds of which were applied previously to finance Permitted Acquisitions, plus (E) the proceeds from any Incremental Extensions of Credit (to the extent not previously applied to make Permitted Acquisitions or to prepay Revolving Loans), plus (F) in the event that, on a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (Pro Forma Basis as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code last day of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become most recently ended fiscal quarter of the Borrower for which financial statements are available, the Net Leverage Ratio is more than 0.25 below the maximum permitted Net Leverage Ratio as of the end of such a Significant Subsidiaryfiscal quarter, such Domestic Subsidiary shall thereafter become party to as set forth in Section 6.13, the Guarantee Agreement as a Guarantor in accordance with Section 5.09Net Proceeds of Additional Senior Subordinated Notes;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof in an aggregate amount not to exceed $500,000,000 in any Person or Persons.
Appears in 1 contract
Investments, Loans, Advances, Guarantees and Acquisitions. The Parent Borrower will shall not, and will shall not permit any of its Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary Loan Party prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit or the rights of any licensee under a trademark license to such licensee from the Parent Borrower or any of its AffiliatesInvestment, except:
(a) Permitted Cash Equivalent Investments;
(b) investments by Investments in the Parent Borrower or in a Subsidiary in of the capital stock of its SubsidiariesBorrower;
(c) loans or advances made Investments by the Parent Borrower to, and Guarantees by the Parent Borrower of obligations of, any Subsidiary, and loans or advances made by any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the Parent Borrower or any other Subsidiaryof its Subsidiaries (excluding the Wharf Entities) in a Person, if as a result of such Investment: (a) such Person becomes a Subsidiary of the Borrower, or (ii) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into the Borrower or a Subsidiary of the Borrower;
(d) any acquisition of assets or capital stock solely in exchange for the issuance of Equity Interest (other than Disqualified Stock) of the Borrower;
(e) any Investments received in compromise or resolution of (i) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Borrower or its Subsidiaries (excluding the Wharf Entities), including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or (ii) litigation, arbitration or other disputes;
(f) Investments represented by Hedging Obligations;
(g) by way of contributions to capital or purchases of Equity Interests (i) by the Borrower in any Subsidiaries that are not Loan Parties or by any Subsidiaries in other Subsidiaries that are not Loan Parties, (ii) by any Subsidiary in the Borrower, or (iii) by the Borrower or any Subsidiary in any Loan Party;
(i) Guarantees constituting Indebtedness permitted by Section 6.016.2; provided that if such Indebtedness can only be incurred by the Borrower or the Subsidiary Guarantors, then such guarantees are only permitted by this clause (h)(i) to the extent made by the Borrower or a Subsidiary Guarantor and (ii) performance guarantees with respect to obligations incurred by the Borrower or any of its Subsidiaries that are permitted under this Agreement;
(ei) advances Investments acquired after the date of this Agreement as a result of the acquisition by the Borrower or loans any Subsidiary of the Borrower of another Person, including by way of a merger, amalgamation or consolidation with or into the Borrower or any of its Subsidiaries in a transaction that is not prohibited by Section 6.4 hereof after the date of this Agreement to the extent that such Investments were not made in contemplation of such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(j) Permitted Business Investments having an aggregate 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 (j) that are at the time outstanding not to exceed, as of the date any such Investment is made, the greater of (x) $375.0 million and (y) 12.5% of Consolidated Net Tangible Assets as of the date of such Investment;
(k) Permitted Bond Hedge Transactions which constitute Investments;
(l) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by any Subsidiary in the ordinary course of business business
(m) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business;
(n) Investments in escrow or trust funds in the ordinary course of business;
(o) other Investments in any Person by the Borrower or any of its Subsidiaries (excluding the Wharf Entities) having an aggregate 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 (o) that are at the time outstanding not to exceed, as of the date of such Investment, the greater of (x) $55.0 million and (y) 1.75% of Consolidated Net Tangible Assets as of the date of such Investment;
(p) advances to officers, directors and employees of the Parent Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of any defaulted Indebtedness or other liability owed to the Parent Borrower or any Subsidiary;
(h) Permitted Acquisitions; provided that if, as a result of a Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic Subsidiary is a “Significant Subsidiary” (as defined in Regulation S-X, part 210.1-02 of Title 17 of the Code of Federal Regulations) or (ii) any then existing Domestic Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary shall thereafter become party to the Guarantee Agreement as a Guarantor in accordance with Section 5.09;
(i) Swap Agreements not entered into for speculative purposes; and
(j) Investments, in addition to Investments permitted under clauses (a) through (h) of this Section 6.05, but including Investments permitted under Section 6.04(b), made after the date hereof Subsidiaries in an aggregate amount not to exceed $500,000,000 5.0 million at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;
(q) Investments consisting of deposits and extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(r) non-cash consideration received, to the extent permitted by the Loan Documents, in connection with the Disposition of property permitted by this Agreement;
(s) Investments listed on Schedule 6.6 as of the Effective Date, and any Person Investment consisting of an extension, modification or Personsrenewal thereof; provided that the amount of any such Investment may be increased (i) as required by the terms of such Investment as in existence on the Effective Date, and (ii) as otherwise permitted under this Agreement;
(t) 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;
(u) Investments constituting Capital Expenditures; and
(v) Investments permitted by Section 6.2.
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