Investments, Loans, Advances. The Borrower will not, and will not permit any of its Subsidiaries to, make or permit to exist any loans, advances or capital contributions to, or make any investment in, or purchase or commit to purchase any stock or other securities or evidences of indebtedness of or interests in any Person, except the following (provided that after giving effect thereto there shall exist no Default): (1) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures to the extent permitted by Section 6.5(b); (2) trade and customer accounts receivable which are for goods furnished or services rendered in the ordinary course of business and are payable in accordance with customary trade terms; (3) ordinary course of business contributions, loans or advances to, or investments in, (i) a direct or indirect Subsidiary of the Borrower, provided that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrower; (4) contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal year; and (5) other capital investments not otherwise permitted by this Section 6.6 in any Person which is not, and will not become a Subsidiary of the Borrower as a result of such capital investment provided that (i) the aggregate amount of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiaries.
Appears in 3 contracts
Samples: Credit Agreement (Arkansas Best Corp /De/), Credit Agreement (Arkansas Best Corp /De/), Credit Agreement (Arkansas Best Corp /De/)
Investments, Loans, Advances. Guarantees and -------------------------------------------- Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries ------------ to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned 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, advances or capital contributions to, or make any investment in, or purchase or commit to purchase any stock or other securities or evidences of indebtedness of or interests in any Person, except the following (provided that after giving effect thereto there shall exist no Default):
(1) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures to the extent permitted by Section 6.5(b);
(2) trade and customer accounts receivable which are for goods furnished or services rendered in the ordinary course of business and are payable in accordance with customary trade terms;
(3) ordinary course of business contributions, loans or advances to, Guarantee any obligations of, or investments make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (iin one transaction or a series of transactions) any assets of any other Person constituting a direct business unit, except:
(a) Permitted Investments;
(b) Investments by the Borrower existing on the date hereof in the capital stock of its Subsidiaries and Investments by the Borrower existing on the date hereof described in Part B of Schedule 3.14;
(c) Investments made by the Borrower in any Subsidiary and made by any Subsidiary in the Borrower or indirect Subsidiary of the Borrower, provided that if, any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) Investments in an aggregate amount not exceeding $10,000,000 at any one time outstanding in a cold storage warehouse and distribution center in Sioux Falls, South Dakota constituting a joint venture between Freezer Services Inc., the Borrower and Xxxx Xxxxxxx & Co.;
(f) other Investments not exceeding $5,000,000 in the aggregate amount of all such contributions, loans or advances to, or investments in, outstanding at any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrower;
(4) contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal yeartime; and
(5g) other capital investments not otherwise Investments constituting Acquisitions or Joint Ventures permitted by this Section 6.6 6.03(b) made by the Borrower or any of its Subsidiaries in any Person (other than a Subsidiary) principally engaged in a business in which is not, and will not become a Subsidiary of the Borrower as a result of such capital investment provided that (i) the aggregate amount of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related are permitted by Section 6.03(c) to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiariesengaged.
Appears in 2 contracts
Samples: Multi Year Credit Agreement (Smithfield Foods Inc), Multi Year Credit Agreement (Smithfield Foods Inc)
Investments, Loans, Advances. The Borrower will not, Company shall not and will shall not suffer or permit any of its Subsidiaries to, Restricted Subsidiary to make or permit to exist any loans, advances or capital contributions to, or make any investment in, or purchase or commit to purchase make any stock or Investment, other securities or evidences than: (a) Permitted Investments – Cash Equivalents; (b) Investments in its existing Restricted Subsidiaries (other than Excluded Subsidiaries during the Specified Period); (c) Investments in new Restricted Subsidiaries (other than Excluded Subsidiaries during the Specified Period) engaged in businesses of indebtedness the type conducted by the Company and its Restricted Subsidiaries on the date of or interests in any Person, except the following execution of this Agreement and businesses reasonably related thereto; (provided that after giving effect thereto there shall exist no Default):
(1d) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures to the extent permitted by Section 6.5(b);
(2) trade and customer accounts receivable which are for goods furnished or services rendered in the ordinary course of business and are payable in accordance with customary trade terms;
(3) ordinary course of business contributions, loans or advances toto franchisees not to exceed $10,000,000, on a consolidated basis, in the aggregate at any time after the First Amendment Effective Date other than during a Specified Period; (e) existing Investments listed in the attached Schedule 10.16, (f) Investments required under Deferred Equity Contribution Obligations, (g) Investments (excluding Contingent Obligations) in owners of properties or investments inbusinesses managed by the Company or a Restricted Subsidiary, consistent with the Company’s existing business practices or policies; (h) Investments permitted in Section 10.10, (i) Investments, consisting of Contingent Obligations, in owners of properties or businesses managed by the Company or a direct or indirect Restricted Subsidiary of not to exceed $25,000,000, on a consolidated basis, in the Borrower, provided that if, aggregate at any time after the First Amendment Effective Date; (j) investments by the Company’s captive insurance Subsidiary consistent with its investment policy and current practices approved by the Administrative Agent from time to time; and (k) other Investments (including Contingent Obligations) not to exceed $25,000,000 on a consolidated basis, in the aggregate amount of all such contributionsat any time after the First Amendment Effective Date; provided, loans or advances tohowever, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrower;
(4) contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that (i) the Company and its Restricted Subsidiaries shall only be permitted to make or commit to make any other Investments (including Contingent Obligations) during the Specified Period if on a consolidated basis and in the aggregate amount of such contributions to or investments in any such Person exceeds other Investments do not exceed $5,000,000, the Borrower shall have caused such Person to have executed 5,000,000 and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) notwithstanding anything herein to the aggregate amount of all such contributions tocontrary, Investments made in or investments in any such Persons which have not so executed and delivered an Accession Agreement plus to Pxxxxxx LLC during the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) after the Effective Date for such contributions or investments Specified Period shall not exceed $5,000,000 in any fiscal year; and
(5) other capital investments not otherwise permitted by this Section 6.6 in any Person which is not, and will not become a Subsidiary of the Borrower as a result of such capital investment provided that (i) the aggregate amount of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiariesaggregate.
Appears in 2 contracts
Samples: Note Purchase Agreement (Marcus Corp), Note Purchase Agreement (Marcus Corp)
Investments, Loans, Advances. The Borrower will not, and will not permit any of its Subsidiaries to, make or permit to exist any loans, advances or capital contributions to, or make any investment in, or purchase or commit to purchase any stock or other securities or evidences of indebtedness Indebtedness of or interests in any Person, except the following (provided that after giving effect thereto there shall exist no Default):following:
(1a) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures to the extent permitted by Section 6.5(b)Investments;
(2b) trade and customer accounts receivable which are for goods furnished receivables owing to the Borrower or services rendered its Subsidiaries created or acquired in the ordinary course of business and are payable in accordance with on customary trade termsterms of the Borrower or such Subsidiary and in compliance with the arm’s-length requirements of Section 6.8;
(3c) Investments received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(d) Hedging Transactions entered into in compliance with Section 6.2;
(e) deposits made in the ordinary course of business contributionsconsistent with past practices to secure the performance of leases;
(f) unsecured intercompany loans, loans advances and capital contributions from the Borrower to any of its Subsidiaries, from any of its Subsidiaries to the Borrower or any other such Subsidiaries except as expressly restricted hereunder;
(g) normal and reasonable advances to, or investments in, in the ordinary course of business to its officers and employees;
(h) joint ventures between any foreign Subsidiary of the Borrower and any other Person;
(i) the purchase of stock in, or an investment by a direct or indirect foreign Subsidiary of the Borrower, provided that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments Borrower in, any such Subsidiary occurring exceeds $5,000,000, an insurance company for the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed purpose of obtaining credit and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrowerpolitical risk insurance for export sales;
(4j) contributions to, the purchase or capital investments acquisition of stock in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreementfor a Code Section 401(k) plan, related financing statements and a certificate covering the same matters described in Code Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, 423 plan or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock Plan of the BorrowerBorrower or any of its Subsidiaries;
(k) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal yearas permitted by Sections 6.5 and 6.6; and
(5l) other capital investments Investments not otherwise permitted by this Section 6.6 to exceed in any Person which is not, and will not become a Subsidiary the aggregate 10% of the Borrower as a result of such capital investment provided that (i) the aggregate amount of such investments outstanding Borrower’s Consolidated Net Worth at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiariestime.
Appears in 1 contract
Investments, Loans, Advances. Guarantees and -------------------------------------------- Acquisitions. The Borrower will not, and will not permit any of its Restricted ------------- Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Wholly Owned 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 loansloans or advances to, advances or capital contributions toGuarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or commit to purchase otherwise acquire (in one transaction or a series of transactions) any stock or assets of any other securities or evidences of indebtedness of or interests in any PersonPerson constituting a business unit, except the following (provided that after giving effect thereto there shall exist no Default):except:
(1a) Permitted Investments;
(b) investments existing on the purchase of Liquid Investments with a Bank date hereof and the purchase of Subordinated Debentures set forth on Schedule 6.05(b), to the extent such investments would not be permitted under any other clause of this Section;
(c) investments by the Borrower and its Restricted Subsidiaries (other than any Special Purpose Subsidiary) in the Capital Stock of the Restricted Subsidiaries; provided that any such shares of capital stock held by a Loan -------- Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to common stock of a Foreign Subsidiary referred to in Section 5.12) and no investments may be made in Subsidiaries that are not Loan Parties;
(d) loans or advances made by the Borrower to any Restricted Subsidiary and made by any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary; provided that any such loans and advances made -------- by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement and no loans or advances may be made to Subsidiaries that are not Loan Parties;
(e) Guarantees constituting Indebtedness permitted by Section 6.5(b)6.01; provided that a Subsidiary shall not Guarantee the Subordinated Debt unless -------- (A) such Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon any release and termination of such Guarantee of the Obligations;
(2f) trade investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and customer accounts receivable which are for goods furnished or services rendered disputes with, customers and suppliers, in each case in the ordinary course of business and are payable in accordance with customary trade termsbusiness;
(3g) ordinary course of business contributions, loans or advances to, or investments in, the San Xxxx Acquisition;
(h) the THC San Diego Merger;
(i) a direct or indirect Subsidiary of the Borrower, provided that if, at any time Mercury Acquisition;
(j) the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, Wireless 2000 Acquisition;
(k) the LMDS Merger;
(l) Other acquisitions in which the only consideration paid by the Borrower shall have caused such or any Restricted Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) consists of Capital Stock of the Borrower;
(4m) contributions to, or capital investments Loans and advances to employees in a Person which, prior an amount not to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in 250,000 at any fiscal yeartime outstanding; and
(5n) other capital investments not otherwise permitted Investments by this Section 6.6 in any Person which is not, and will not become a Subsidiary of the Borrower as a result in Unrestricted Subsidiaries funded with the proceeds of such capital investment provided that (i) the aggregate amount of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse contributed to the Borrower specifically for such purpose and its Subsidiariesnot required to be contributed to the Borrower pursuant to the Securities Purchase Agreement in an aggregate amount for all such Unrestricted Subsidiaries not to exceed $50,000,000.
Appears in 1 contract
Samples: Credit Agreement (Telecorp PCS Inc)
Investments, Loans, Advances. Guarantees and -------------------------------------------- Acquisitions; Asset Sales.
(a) The Borrower will not, and nor will not it permit any -------------------------- Subsidiary Loan Party 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 Equity Interests in, evidences of its Subsidiaries toindebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loansloans or advances to, advances or capital contributions toGuarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or commit to purchase otherwise acquire (in one transaction or a series of transactions) any stock or assets of any other securities or evidences of indebtedness of or interests in any PersonPerson constituting a business unit, except the following (provided that after giving effect thereto there shall exist no Default):except:
(1i) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures to the extent permitted by Section 6.5(b)Permitted Investments;
(2ii) trade investments by the Borrower in Equity Interests in the Subsidiaries;
(iii) loans or advances made by the Borrower to any Subsidiary and customer made by any Subsidiary to the Borrower; provided that all such loans -------- and advances shall be evidenced by promissory notes pledged pursuant to the Borrower Pledge Agreement and shall be subordinated to the Obligations as provided in the Subordination Agreement;
(iv) Guarantees by the Borrower of obligations of the Subsidiaries;
(v) investments by the Borrower and the Subsidiaries received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts receivable which are for goods furnished or services rendered and disputes with, customers and suppliers, in each case in the ordinary course of business and are payable business;
(vi) the ChaseTel Acquisition may be consummated; provided that -------- (A) the ChaseTel Acquisition shall be consummated in accordance with customary trade terms;
the ChaseTel Purchase Agreement, without giving effect to any amendment or modification thereto or waiver thereunder that has not been approved by the Required Lenders (3) ordinary course of business contributions, loans or advances to, or investments inwhich approval shall not be unreasonably withheld), (iB) ChaseTel shall become a direct or indirect Subsidiary wholly owned Subsidiary, either as a result of the BorrowerChaseTel Acquisition or by merger with a wholly owned Subsidiary promptly upon consummation of the ChaseTel Acquisition, provided that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower (C) ChaseTel Licensee shall have caused such Subsidiary (if not then become a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrower;
(4) contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a License Subsidiary as a result of such contribution the ChaseTel Acquisition, (D) neither the Borrower nor any Subsidiary Loan Party shall be directly or investmentindirectly liable for the ChaseTel Earnout (except that the Borrower may agree to be liable therefor, subject to the same conditions that would apply to Restricted Payments pursuant to clause (c) of Section 6.06, and provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, obligation of the Borrower shall have caused such Person to have executed and delivered be subordinated to the Agent an Accession AgreementObligations on terms satisfactory to the Administrative Agent), related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (iiE) the aggregate amount ChaseTel Indebtedness shall be fully repaid (or, in the case of all such contributions to, or investments in any such Persons which have not so executed Indebtedness owing to the Parent or any of its subsidiaries, including the Borrower, forgiven and delivered an Accession Agreement plus discharged without consideration) and all Liens securing the aggregate amount ChaseTel Indebtedness shall be released and terminated upon consummation of investments under paragraph (e) below shall not exceed $5,000,000; the ChaseTel Acquisition and (iiiF) the aggregate consideration paid (other than in the form of common stock Collateral and Guarantee Requirement shall be satisfied promptly upon consummation of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal yearChaseTel Acquisition; and
(5) other capital investments not otherwise permitted by this Section 6.6 in any Person which is not, and will not become a Subsidiary of the Borrower as a result of such capital investment provided that (i) the aggregate amount of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiaries.
Appears in 1 contract
Investments, Loans, Advances. The Borrower Guarantees and -------------------------------------------- Acquisitions. Prior to the Investment Grade Date, no Restricted Person will not------------ purchase, and will hold or acquire (including pursuant to any merger with any Person that was not permit a wholly owned Restricted Subsidiary prior to such merger) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of its Subsidiaries tothe foregoing) of, make or permit to exist any loansloans or advances to, advances or capital contributions toGuarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or commit otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments existing on the Restatement Effective Date and set forth in Part A of Schedule 6.04;
(c) investments by the Restricted Persons in Equity Interests in their respective Subsidiaries; provided that: (i) the Collateral and -------- Guarantee Requirement shall have been satisfied with respect to purchase any stock or other securities or evidences of indebtedness of such Restricted Subsidiaries and Equity Interests; and (ii) all investments made or interests in any Personacquired after the Restatement Effective Date by Restricted Persons in, except the following (provided that after giving effect thereto there and loans and advances by Restricted Persons to, and Guarantees by Restricted Persons of Indebtedness of, Unrestricted Subsidiaries shall exist no Default):
(1) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures to the extent have been permitted by Section 6.5(b6.05(c), (j), (k) or (l) when made or acquired;
(2d) trade loans or advances made by any Restricted Person to any other Restricted Person; Credit Agreement ---------------- -80-
(e) Guarantees constituting Indebtedness permitted by Section 6.01 and customer accounts receivable which are for goods furnished or services rendered Guarantees of commercial obligations (not constituting Indebtedness) of Restricted Persons incurred in the ordinary course of business and are payable business; provided -------- that the aggregate principal amount of Indebtedness of Unrestricted Subsidiaries that is Guaranteed by any Restricted Person shall be subject to the limitations set forth in accordance with customary trade termsSection 6.05(c);
(3f) 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 contributionsbusiness;
(g) Permitted Acquisitions and investments specified in the last paragraph of Section 1.03;
(h) any transaction permitted by Section 6.03 without reliance on this paragraph (h);
(i) any other investments in, advances or loans or advances to, or investments inGuarantees of Indebtedness of, any Person or acquisitions of all or substantially all the assets of a Person or division or line of business of a Person (iin each case, other than an Unrestricted Subsidiary) a direct or indirect Subsidiary of made after the BorrowerRestatement Effective Date, provided that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described transactions made in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined -------- reliance on with respect to each Guarantor or (ii) the Borrower;
(4) contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that this paragraph (i) if the aggregate amount outstanding as of such contributions to or investments in any such Person exceeds $5,000,000date (for purposes of this paragraph (i), the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii"current date") with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal year; and
(5) other capital investments not otherwise permitted by this Section 6.6 in any Person which is not, and will not become a Subsidiary of the Borrower as a result of such capital investment provided that (i) the aggregate amount of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiaries.sum of: ------------
Appears in 1 contract
Investments, Loans, Advances. Guarantees and Acquisitions; Asset Sales.
(a) The Borrower Parent will not, and nor will not it permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a 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 loansloans or advances to, advances or capital contributions toGuarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or commit to purchase otherwise acquire (in one transaction or a series of transactions) any stock Special Service License or any assets of any other securities or evidences of indebtedness of or interests in any PersonPerson constituting a business unit, except the following (provided that after giving effect thereto there shall exist no Default):except:
(1i) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures to the extent permitted by Section 6.5(b)Permitted Investments;
(2ii) trade investments by the Parent and customer its Restricted Subsidiaries in the capital stock of their respective Restricted Subsidiaries; provided that the sum of the aggregate amount of outstanding investments made by the Parent and its Restricted Subsidiaries that are Loan Parties in, and loans and advances made by the Parent and its Restricted Subsidiaries that are Loan Parties to, Restricted Subsidiaries that are not Loan Parties, plus the aggregate amount of obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by the Parent, shall not at any time exceed $__________; provided further that (A) investments described in clause (xi) below and (B) Guarantees by Loan Parties of Indebtedness of Special Purpose Equipment Subsidiaries and payment by the Parent of principal of and interest on such Indebtedness and related expenses shall be permitted without regard to the limitation set forth in the foregoing proviso;
(iii) loans or advances made by the Parent to any Restricted Subsidiary and made by any Restricted Subsidiary to the Parent or any other Restricted Subsidiary; provided that the aggregate amount of such loans and advances made by the Parent and its Restricted Subsidiaries that are Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in the proviso to clause (ii) above;
(iv) Guarantees by the Parent of obligations of the Restricted Subsidiaries, Guarantees by Guarantor Subsidiaries of Indebtedness of any Special Purpose Equipment Subsidiary and Guarantees by WinStar Wireless, Inc. of obligations (other than Indebtedness) of any other Guarantor Subsidiary; provided that the aggregate amount of outstanding obligations Guaranteed by the Parent of Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in the proviso to clause (ii) above;
(v) Permitted Acquisitions and the acquisitions described in Schedule 6.04A that are made substantially on the terms described on such Schedule;
(vi) promissory notes received by the Parent or any Restricted Subsidiary in connection with sales of assets (other than assets constituting Collateral) permitted by paragraph (b) below;
(vii) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts receivable which are and disputes with, customers and suppliers, in each case in the ordinary course of business;
(A) promissory notes of directors, officers or employees of the Parent or any Restricted Subsidiary issued to the Parent in exchange for goods furnished or services rendered common stock of the Parent, (B) payroll, travel and similar advances made in the ordinary course of business and that are payable expected at the time such advances are made ultimately to be treated as expenses in accordance with customary trade termsGAAP and (C) other loans and advances by the Parent or any Restricted Subsidiary to their respective directors, officers or employees in an aggregate principal amount not exceeding $____________ at any one time outstanding;
(3ix) ordinary course of business contributions, loans or advances to, or investments in, (i) a direct or indirect Subsidiary of existing on the Borrower, provided that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed Effective Date and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined set forth on with respect to each Guarantor or (ii) the BorrowerSchedule 6.04B;
(4x) contributions toto the extent that the consideration therefor consists solely of common stock or Permitted Preferred Stock of the Parent or is paid for in cash out of the Net Proceeds of a substantially concurrent issuance of common stock or Permitted Preferred Stock of the Parent (or options, warrants and other rights to purchase shares of such common stock or Permitted Preferred Stock) (other than common stock or Permitted Preferred Stock of the Parent (or options, warrants and other rights to purchase shares of such commen stock or Permitted Preferred Stock) issued to and paid for by a Subsidiary), investments in Unrestricted Subsidiaries, joint ventures and minority interests in Persons engaged in any business or activity in which the Parent and the Restricted Subsidiaries are permitted to engage;
(xi) investments by the Parent in Subsidiaries resulting from the allocation by the Parent of corporate overhead expenses paid by the Parent among the Subsidiaries pursuant to book entries made in accordance with past practices;
(xii) investments owned by a Person at the time such Person is acquired pursuant to an acquisition permitted by clause (v) above; provided that such investment is not made in connection with, or capital investments in contemplation of, such acquisition;
(xiii) the acquisition of the shares or other equity interests in a Person which, prior to such contribution or investment, is not a Subsidiary but which that becomes a Restricted Subsidiary as a result upon consummation of such contribution or investment, acquisition; provided that (iA) if substantially all of the aggregate amount assets of such contributions to or investments in any Person consist of Other Service Licenses, (B) such Person exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid has no outstanding Indebtedness (other than Indebtedness that is repaid upon consummation of such acquisition) and (C)(x) in the form case of common stock an acquisition of shares or other equity interests in a Person that is organized under the laws of any jurisdiction in the United States of America or a substantial portion of the BorrowerOther Service Licenses of which relate to markets in the United States of America, at least 80% of all shares or other equity interests in all Restricted Subsidiaries resulting from such acquisition are owned, directly or indirectly, by the Parent, or (y) after in the Effective Date for case of any other such contributions acquisition, at least a majority of all shares or investments shall not exceed $5,000,000 other equity interests in any fiscal yearall Restricted Subsidiaries resulting from such acquisition are owned, directly or indirectly, by the Parent; and
(5xiv) other capital investments, loans, advances and Guarantees by the Parent or any of the Restricted Subsidiaries (including (x) investments not otherwise permitted by this Section 6.6 in Unrestricted Subsidiaries and (y) investments in any Person which Restricted Subsidiary existing at the time such Subsidiary is designated as an Unrestricted Subsidiary) in an aggregate amount not exceeding $__________ (or, on and after January 1, 2004, $__________).
(b) The Parent will not, and nor will not become it permit any of its Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset, including any capital stock of or ownership interest in any other Person owned by it, nor will the Parent permit any Restricted Subsidiary to issue (other than to the Parent or a Subsidiary wholly owned Restricted Subsidiary) any additional shares of the Borrower as a result of its capital stock or other ownership interest in such capital investment provided that Restricted Subsidiary, except:
(i) the aggregate amount sales of such investments outstanding at any time plus the aggregate amount of contributions to(A) inventory, (B) obsolete, uneconomic or investments in any Persons as contemplated under paragraph (d) above which have surplus assets not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be exceeding, in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services aggregate, $__________ during any fiscal year of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiaries.Parent and
Appears in 1 contract
Investments, Loans, Advances. The Guarantees and -------------------------------------------- Acquisitions. Catalytica and the 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, evidences of indebtedness or other securities (including the purchase or exercise of any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loansloans or advances to, advances or capital contributions toGuarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or commit to purchase otherwise acquire (in one transaction or a series of transactions) any stock or assets of any other securities or evidences of indebtedness of or interests in any PersonPerson constituting a business unit, except the following (provided that after giving effect thereto there shall exist no Default):except:
(1a) the purchase of Liquid Investments with a Bank Acquisition;
(b) Permitted Investments;
(c) investments existing on the date hereof and the purchase of Subordinated Debentures set forth on Schedule 6.04, to the extent such investments would not be permitted under any other clause of this Section;
(d) subject to the final paragraph of this Section, investments by Catalytica, the Borrower and the Restricted Subsidiaries in Catalytica, the Borrower and the Restricted Subsidiaries; provided that any shares of -------- capital stock issued in connection with such investments shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to common stock of a Foreign Subsidiary referred to in Section 6.5(b5.12);
(2e) trade subject to the final paragraph of this Section, loans or advances made by Catalytica, the Borrower and customer the Restricted Subsidiaries to Catalytica, the Borrower and the Restricted Subsidiaries; provided that any -------- such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement;
(f) Subject to the final paragraph of this Section, Guarantees constituting Indebtedness permitted by Section 6.01;
(g) investments, securities or other interests received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts receivable which are for goods furnished or services rendered and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) loans and advances to officers, directors and employees of Catalytica, the Borrower and the Restricted Subsidiaries made in the ordinary course of business and are payable not exceeding $3,500,000 in accordance with customary trade termsthe aggregate at any time outstanding;
(3i) ordinary course investments, loans, advances and Guarantees not otherwise permitted above so long as the amount of business contributionssuch investments, loans or loans, advances toand Guarantees does not exceed $15,000,000 in the aggregate at any time outstanding; and
(j) payments to Catalytica Combustion and its subsidiaries permitted by Section 6.09(e). Notwithstanding the provisions of Section 6.04(d), or investments in(e) and (f) and except as otherwise provided in Section 6.04(i), (a) the amount of (i) a direct or indirect Subsidiary of investments by the BorrowerLoan Parties made after the Effective Date in Restricted Subsidiaries that are not Loan Parties, provided that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) loans and advances by Loan Parties made after the Borrower;
(4) contributions to, or capital investments in a Person which, prior Effective Date to such contribution or investment, is Restricted Subsidiaries that are not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; Loan Parties and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) Guarantees entered into by any Loan Party after the Effective Date for such contributions or investments of Indebtedness of Restricted Subsidiaries that are not Loan Parties shall not exceed $5,000,000 in the aggregate at any fiscal year; and
time outstanding, (5b) other capital the amount of (i) investments not otherwise permitted made by this Section 6.6 in Catalytica, the Borrower or any Person which is not, and will not become a Subsidiary of the Borrower as a result after the Effective Date in Catalytica Combustion or any of its subsidiaries, (ii) loans and advances made by Catalytica, the Borrower or any Subsidiary of the Borrower after the Effective Date to Catalytica Combustion or any of its subsidiaries and (iii) Guarantees entered into by Catalytica, the Borrower or any Subsidiary of the Borrower after the Effective Date of Indebtedness of Catalytica Combustion or any of its subsidiaries shall not exceed $5,000,000 in the aggregate in any fiscal year of Catalytica, provided that any portion of such capital investment provided that amount not used in such fiscal year (iincluding any portion attributable to this proviso) will be added to the permitted amount for the succeeding fiscal year, (c) the aggregate amount of such (i) investments outstanding at made by Catalytica, the Borrower or any time plus Subsidiary of the aggregate amount Borrower after the Effective Date in Advanced Technologies or any of contributions toits subsidiaries, (ii) loans and advances made by Catalytica, the Borrower or investments in any Persons as contemplated under paragraph Subsidiary of the Borrower after the Effective Date to Advanced Technologies or any of its subsidiaries and (diii) above which have not executed and delivered an Accession Agreement Guarantees entered into by Catalytica, the Borrower or any Subsidiary of the Borrower after the Effective Date of Indebtedness of Advanced Technologies or any of its subsidiaries shall not exceed $5,000,000; (ii) such Person shall be 1,000,000 in the same or substantially similar line or lines aggregate in any fiscal year of business as Catalytica, provided that any portion of such amount not used in such fiscal year (including any portion attributable to this proviso) will be added to the permitted amount for the succeeding fiscal year, (d) none of Catalytica, the Borrower or any Subsidiary of the Borrower shall after the Effective Date make any investment in or loan or advance to or Guarantee any Indebtedness of any Non-Borrower Subsidiary other than Catalytica Combustion, Advanced Technologies and their respective subsidiaries, (e) Advanced Technologies and its subsidiaries shall not make after the Effective Date any investment in or loan or advance to or Guarantee any Indebtedness of any other Non-Borrower Subsidiaries other than their respective subsidiaries, (f) prior to the Catalytica Combustion Release Date, neither Catalytica Combustion nor any of its subsidiaries shall make after the Effective Date any investment in or a line loan or advance to or Guarantee any Indebtedness of business directly related to providing services any Non-Borrower Subsidiaries other than Catalytica Combustion and its subsidiaries and (g) on and after the Catalytica Combustion Release Date, none of the nature Catalytica, the Borrower and or any Restricted Subsidiary shall make any investment in or loan or advance to or Guarantee any Indebtedness of Catalytica Combustion or any of its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiariessubsidiaries.
Appears in 1 contract
Investments, Loans, Advances. The Borrower Company will not, and will not permit any of its Subsidiaries to, make or permit to exist any loans, advances or capital contributions to, or make any investment in, or purchase or commit to purchase any stock or other securities or evidences of indebtedness of or interests in in, any Person, except the following (provided that before and after giving effect thereto there shall exist no Default):
(1a) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures to the extent permitted by Section 6.5(b)Investments;
(2b) trade and customer accounts receivable which are for goods furnished or services rendered in the ordinary course of business and are payable in accordance with customary trade terms;
(3c) ordinary course of business contributions, loans or advances to, or investments in, (i) a direct or indirect Subsidiary of the Borrower, provided that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor Company or (ii) the BorrowerCompany;
(4d) contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that that, (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, the Borrower Company shall have caused such Person to have executed and delivered become a Guarantor or Borrower pursuant to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph 2.19(a);
(e) below to the extent not prohibited by law, loans and advances to officers, directors and employees of the Company and its Subsidiaries so long as the aggregate principal amount thereof outstanding at any time shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal year2,000,000; and
(5f) other capital investments not otherwise permitted by this Section 6.6 in any Person which is not, and will not become become, a Subsidiary of the Borrower Company as a result of such capital investment investment, provided that (i) the aggregate amount of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,00010,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower Company and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower Company and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower Company and its Subsidiaries.
Appears in 1 contract
Investments, Loans, Advances. The Guarantees and -------------------------------------------- Acquisitions. Catalytica and the 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 the purchase or exercise of any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loansloans or advances to, advances or capital contributions toGuarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or commit to purchase otherwise acquire (in one transaction or a series of transactions) any stock or assets of any other securities or evidences of indebtedness of or interests in any PersonPerson constituting a business unit, except the following (provided that after giving effect thereto there shall exist no Default):except:
(1a) the purchase of Liquid Investments with a Bank Acquisition;
(b) Permitted Investments;
(c) investments existing on the date hereof and the purchase of Subordinated Debentures set forth on Schedule 6.04, to the extent such investments would not be permitted under any other clause of this Section;
(d) subject to the final paragraph of this Section, investments by Catalytica, the Borrower and the Subsidiaries in Catalytica, the Borrower and the Subsidiaries; provided that any shares of capital stock issued in -------- connection with such investments shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to common stock of a Foreign Subsidiary referred to in Section 6.5(b5.12);
(2e) trade subject to the final paragraph of this Section, loans or advances made by Catalytica, the Borrower and customer the Subsidiaries to Catalytica, the Borrower and the Subsidiaries; provided that any such loans and advances -------- made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement;
(f) Subject to the final paragraph of this Section, Guarantees constituting Indebtedness permitted by Section 6.01;
(g) investments, securities or other interests received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts receivable which are for goods furnished or services rendered and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) loans and advances to officers, directors and employees of Catalytica and its subsidiaries made in the ordinary course of business and are payable not exceeding $2,500,000 in accordance with customary trade terms;the aggregate at any time outstanding; and
(3) ordinary course of business contributions, loans or advances to, or investments in, (i) a direct or indirect Subsidiary investments, loans, advances and Guarantees not otherwise permitted above so long as the amount of such investments, loans, advances and Guarantees does not exceed $15,000,000 in the Borrower, provided that if, aggregate at any time outstanding. Notwithstanding the aggregate provisions of Section 6.04(d), (e) and (f), (a) the amount of all such contributions(i) investments by the Loan Parties made after the Effective Date in subsidiaries that are not Loan Parties, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) loans and advances by Loan Parties made after the Borrower;
(4) contributions to, or capital investments in a Person which, prior Effective Date to such contribution or investment, is Subsidiaries that are not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; Loan Parties and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) Guarantees entered into by any Loan Party after the Effective Date for such contributions or investments of Indebtedness of Subsidiaries that are not Loan Parties shall not exceed $5,000,000 in the aggregate at any fiscal year; and
time outstanding, (5b) other capital the amount of (i) investments not otherwise permitted made by this Section 6.6 in Catalytica, the Borrower or any Person which is not, and will not become a Subsidiary subsidiary of the Borrower as a result after the Effective Date in Catalytica Combustion or any of its subsidiaries, (ii) loans and advances made by Catalytica, the Borrower or any subsidiary of the Borrower after the Effective Date to Catalytica Combustion or any of its subsidiaries and (iii) Guarantees entered into by Catalytica, the Borrower or any subsidiary of the Borrower after the Effective Date of Indebtedness of Catalytica Combustion or any of its subsidiaries shall not exceed $5,000,000 in the aggregate in any fiscal year of Catalytica, provided that any portion of such capital investment provided that amount not used in such fiscal year (iincluding any portion attributable to this proviso) will be added to the permitted amount for the succeeding fiscal year, (c) the aggregate amount of such (i) investments outstanding at made by Catalytica, the Borrower or any time plus subsidiary of the aggregate amount Borrower after the Effective Date in Advanced Technologies or any of contributions toits subsidiaries, (ii) loans and advances made by Catalytica, the Borrower or investments in any Persons as contemplated under paragraph subsidiary of the Borrower after the Effective Date to Advanced Technologies or any of its subsidiaries and (diii) above which have not executed and delivered an Accession Agreement Guarantees entered into by Catalytica, the Borrower or any subsidiary of the Borrower after the Effective Date of Indebtedness of Advanced Technologies or any of its subsidiaries shall not exceed $5,000,000; (ii) such Person shall be 1,000,000 in the same or substantially similar line or lines aggregate in any fiscal year of business as Catalytica, provided that any portion of such amount not used in such fiscal year (including any portion attributable to this proviso) will be added to the permitted amount for the succeeding fiscal year, (d) none of Catalytica, the Borrower or any subsidiary of the Borrower shall after the Effective Date make any investment in or loan or advance to or Guarantee any Indebtedness of any Non-Borrower Subsidiary other than Catalytica Combustion, Advanced Technologies and their respective subsidiaries, (e) none of Catalytica Combustion, Advanced Technologies or any of their subsidiaries shall make after the Effective Date any investment in or loan or advance to or Guarantee any Indebtedness of any other Non-Borrower Subsidiaries other than their respective subsidiaries and (f) on and after the Catalytica Combustion Release Date, none of Catalytica, the Borrower or any Subsidiary other than Catalytica Combustion and its Subsidiaries subsidiaries shall make any investment in or a line loan or advance to or Guarantee any Indebtedness of business directly related to providing services Catalytica Combustion or any of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiariessubsidiaries.
Appears in 1 contract
Samples: Credit Agreement (Catalytica Inc)
Investments, Loans, Advances. Guarantees and Acquisitions --------------------------------------------------------- The Borrower will not, and will not permit any Subsidiary to, purchase, hold or acquire (including pursuant to any merger) any capital stock, evidences of its Subsidiaries indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, make or permit to exist any loans, advances or capital contributions toGuarantees of any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or commit otherwise acquire (in one transaction or a series of transactions (including pursuant to purchase any stock merger)) any assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments existing on the date hereof and set forth in Schedules 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 Borrower to any Subsidiary Guarantor and made by any Subsidiary to the Borrower or any Subsidiary Guarantor;
(e) acquisitions made by the Borrower from any Subsidiary Guarantor and made by any Subsidiary Guarantor from the Borrower or any other securities or evidences of indebtedness of or interests in any PersonSubsidiary Guarantor;
(f) acquisitions permitted by Section 7.5(d), except the following (provided that such acquisitions shall be Cable Television System Acquisitions;
(g) if at the time thereof and immediately after giving effect thereto there no Default shall exist no Default):have occurred or would be continuing, Cable Television System Acquisitions, in an aggregate amount not to exceed $100,000,000;
(1h) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures to the extent Guarantees permitted by Section 6.5(b)7.1;
(2i) trade investments, loans, advances, Guarantees and customer accounts receivable which are for goods furnished or services rendered in acquisitions expressly contemplated by the ordinary course of business and are payable in accordance with customary trade termsInitial Transactions;
(3j) ordinary course the Greenwood Acquisition; 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 business contributions, loans or advances to, or investments in, (i) a direct the -------- aggregate consideration paid by the Borrower or indirect any Subsidiary of the Borrower, provided that if, at any time the aggregate amount of in connection with all such contributionsacquisitions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrower;
(4) contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions toother investments, or investments in any such Persons which have not so executed loans and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; advances outstanding and (iii) the aggregate consideration paid (other than amount of obligations and liabilities outstanding in the form of common stock of the Borrower) after the Effective Date for aggregate that is Guaranteed pursuant to all such contributions or investments other Guarantees shall not exceed $5,000,000 in any fiscal year; and
(5) other capital investments not otherwise permitted by this Section 6.6 in any Person which is not, and will not become a Subsidiary of the Borrower as a result of such capital investment provided that (i) the aggregate amount of such investments outstanding 40,000,000 at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiariestime.
Appears in 1 contract
Investments, Loans, Advances. Guarantees and -------------------------------------------- Acquisitions. The 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 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, advances or capital contributions to, or make any investment in, or purchase or commit to purchase any stock or other securities or evidences of indebtedness of or interests in any Person, except the following (provided that after giving effect thereto there shall exist no Default):
(1) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures to the extent permitted by Section 6.5(b);
(2) trade and customer accounts receivable which are for goods furnished or services rendered in the ordinary course of business and are payable in accordance with customary trade terms;
(3) ordinary course of business contributions, loans or advances to, Guarantee any obligations of, or investments make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except:
(a) Permitted Investments in an amount not to exceed (i) prior to the date that is 60 days after the Effective Date, $6,000,000 at any time outstanding and (ii) thereafter, $5,000,000 at any time outstanding; provided that, in each case, such Permitted Investments are made with or -------- held by a direct Lender;
(b) investments existing on the Effective Date 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 indirect advances made by the Borrower to any wholly owned Subsidiary of that is a Loan Party and made by any such Subsidiary to the BorrowerBorrower or any wholly owned Subsidiary that is a Loan Party;
(e) Guarantees constituting Indebtedness permitted by Section 6.01, provided that ifno Subsidiary shall Guarantee the Subordinated Debt unless -------- (A) such Subsidiary also has Guaranteed the Obligations pursuant to the applicable Guarantee Agreement, at (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 time party, upon the aggregate amount sale (including through merger or consolidation) of all such contributions, loans or advances tothe Equity Interests, or investments inall or substantially all the assets, any of the Loan Party granting such Subsidiary occurring exceeds $5,000,000, Guarantee if such sale is made in compliance with the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to terms of the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the BorrowerSubordinated Debt Documents;
(4f) contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, constituting Capital Expenditures permitted by Section 6.16; provided that investments permitted by this clause (i) if the aggregate amount of such contributions to -------- Foreign Subsidiaries or investments otherwise made in any countries other than the United States shall be permitted only if (x) such Person exceeds $5,000,000investment is to a Canadian Foreign Subsidiary or is otherwise made in Canada in an aggregate amount, the Borrower shall have caused such Person to have executed and delivered on a cumulative basis, subsequent to the Agent Closing Date, not exceeding $35,000,000 or (y) such investment is to a Mexican Foreign Subsidiary or is otherwise made in Mexico in an Accession Agreementaggregate amount, related financing statements and on a certificate covering cumulative basis, subsequent to the same matters described in Section 3.1(a)(iii) with respect to such PersonClosing Date, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed exceeding $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal year30,000,000; and
(5g) other capital investments not otherwise Hedging Agreements permitted by this under Section 6.6 in any Person which is not, and will not become a Subsidiary of the Borrower as a result of such capital investment provided that (i) the aggregate amount of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiaries6.07.
Appears in 1 contract
Investments, Loans, Advances. The Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, purchase, hold, acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), make or otherwise permit to exist any loans, advances or capital contributions to, or make Investment in any investment inother Person, or purchase or commit otherwise acquire (in one transaction or a series of transactions) all or substantially all the assets of any other Person or of a business unit, division, product line or line of business of any other Person, except:
(a) cash and Cash Equivalents;
(b) Investments existing on the date hereof and set forth on Schedule 6.04 and any modification, replacement, renewal, reinvestment or extension thereof; provided that (i) no Investment may be made therein or in respect thereof if such Investment would increase the outstanding amount of such Investment to purchase an amount in excess of the amount of such Investment on the Effective Date (net of return of capital in respect thereof after the Effective Date), other than (A) to the extent required by the terms of such Investment as in effect on the Effective Date up to the amount specified for such Investment on Schedule 6.04 or (B) to the extent made in reliance on another paragraph of this Section 6.04 and (ii) the terms of any stock such Investment are not otherwise modified from the terms that are in effect as of the date hereof in a manner that is materially adverse to the Lenders;
(c) Investments by the Borrower and the Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries; provided that (i) such subsidiaries are Restricted Subsidiaries prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged if and to the extent required to satisfy the Collateral and Guarantee Requirement, and (iii) the aggregate amount of such Investments by the Loan Parties in Restricted Subsidiaries that are not Loan Parties, taken together with the aggregate amount of loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (including without duplication those made in reliance on clauses (d)(iii) and (e)(iii) below, but excluding all such Investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above or consisting of loans or advances permitted by Section 6.04(u)), shall not exceed the greater of (x) $100,000,000 and (y) 6.00% of Consolidated Net Tangible Assets as of the last day of the fiscal quarter, if any, of the Borrower most recently ended for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b); and provided further that (A) in no event shall any Restricted Subsidiary that is a Material Subsidiary cease to be a Loan Party pursuant to this clause (c) except as a result of a consolidation, merger or similar transaction in which the continuing or surviving Person is a Loan Party;
(d) loans or advances made by the Borrower or any Restricted Subsidiary to the Borrower or any Restricted Subsidiary; provided that (i) any such loans and advances made by a Loan Party shall be evidenced by the Global Intercompany Note or another promissory note, in each case, pledged pursuant to the Collateral Agreement, (ii) the Indebtedness resulting therefrom is permitted by clause (iii) of Section 6.01, and (iii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c) above;
(e) Guarantees by the Borrower or any Restricted Subsidiary of Indebtedness or other securities obligations of the Borrower or evidences any Restricted Subsidiary (including any such Guarantees arising as a result of indebtedness any such Person being a joint and several co-applicant with respect to any Letter of Credit or interests any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Indebtedness or obligations of any Loan Party (or any Refinancing Indebtedness in respect thereof) unless (A) such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Collateral Agreement, (B) any such Guarantee of such Indebtedness provides for the release and termination thereof, without action by any Person, except upon any release and termination of such Guarantee of the following Obligations, and (provided that after giving effect thereto there shall exist no Default):
(1C) the purchase of Liquid Investments with a Bank and the purchase any such Guarantee of Subordinated Debentures Indebtedness is subordinated to the extent Loan Document Obligations on terms no less favorable to the Lenders than those of the Subordinated Indebtedness, (ii) any such Guarantee constituting Indebtedness is permitted by Section 6.5(b6.01, and (iii) the aggregate amount of Indebtedness and other obligations of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Parties shall be subject to the limitation set forth in clause (c) above;
(f) the Merger and the other transactions contemplated by the Merger Agreement to be effected on the Effective Date;
(g) Permitted Acquisitions (subject to the restrictions and conditions in the definition of such term with respect to Non-Compliant Subsidiaries and Non-Compliant Assets, including reduction of the Available Amount by an amount equal to any usage thereof to acquire Non-Compliant Subsidiaries and Non-Compliant Assets);
(2h) 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) Investments made as a result of the receipt of noncash consideration from a Disposition of any asset in compliance with Section 6.05;
(j) Investments by the Borrower or any Restricted Subsidiary that result solely from the receipt by the Borrower or such Restricted Subsidiary from any of its subsidiaries of a dividend or other Restricted Payment in the form of Equity Interests, evidences of Indebtedness or securities (but not any additions thereto made after the date of the receipt thereof);
(k) payroll, travel and similar advances to directors and employees of the Borrower or any Restricted Subsidiary to cover matters that are expected at the time of such advances to be treated as expenses of the Borrower or such Restricted Subsidiary for accounting purposes and that are made in the ordinary course of business;
(l) loans or advances to directors, officers, consultants and employees of the Borrower or any Restricted Subsidiary made in the ordinary course of business; provided that the aggregate amount of such loans and advances outstanding at any time shall not exceed $20,000,000;
(m) Investments to the extent the consideration therefor consists of Qualified Equity Interests of the Borrower;
(n) other Investments (including the acquisition of Non-Compliant Subsidiaries and Non-Compliant Assets in connection with Permitted Acquisitions) and so long as at the time each such Investment is purchased, made or otherwise acquired (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) either (x) the aggregate amount of each Investment made in reliance on this clause (n) shall not exceed, and shall utilize, the Available Amount at such time or (y) the Leverage Ratio at such time, calculated on a Pro Forma Basis giving effect to such Investment, is equal to or less than 2.25 to 1.00 and the Borrower is in Pro Forma Compliance with the covenant set forth in Section 6.13;
(o) Investments in the form of Hedging Agreements permitted by Section 6.07;
(p) Investments of any Person existing at the time such Person becomes a Restricted Subsidiary or consolidates or merges with the Borrower or any Restricted Subsidiary so long as such Investments were not made in contemplation of such Person becoming a Restricted Subsidiary or of such consolidation or merger and so long as each such Investment that absent this paragraph (p) could not be made or held without reliance on another paragraph of this Section 6.04 shall be deemed to have been made or to be held, as applicable, in reliance on such other paragraph and not in reliance on this paragraph (p);
(q) Investments resulting from pledges or deposits described in clause (c), (d) or (n) of the definition of the term “Permitted Encumbrance”;
(r) receivables or other trade and customer accounts receivable which are for goods furnished payables owing to the Borrower or services rendered a Restricted Subsidiary if created or acquired in the ordinary course of business and are payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as the Borrower or any Restricted Subsidiary deems reasonable under the circumstances;
(3s) mergers and consolidations permitted under Section 6.03 that do not involve any Person other than the Borrower and Restricted Subsidiaries that are wholly owned Restricted Subsidiaries; provided that any such merger or consolidation that results in an Investment by a Loan Party in a Restricted Subsidiary that is not a Loan Party shall be deemed made in reliance on paragraph (c) above;
(t) Guarantees to insurers required in connection with worker’s compensation and other insurance coverage of business operating risks (but not any credit or financial risks) arranged in the ordinary course of business contributions, business;
(u) loans or advances to, or investments in, (i) a direct or indirect Subsidiary of the Borrower, provided that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, made by the Borrower shall have caused or any Restricted Subsidiary to any Foreign Subsidiary the proceeds of which are to be used by such Foreign Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrower;
(4) contributions to, or for working capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, purposes; provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000loans and advances made by a Loan Party shall be evidenced by the Global Intercompany Note or another promissory note, the Borrower shall have caused such Person to have executed and delivered in each case, pledged pursuant to the Agent an Accession Agreement, related financing statements Collateral Agreement and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate outstanding amount of all such contributions to, or investments loans and advances shall not at any time exceed $75,000,000;
(v) Investments by any Foreign Subsidiary in any Person that is or becomes a Foreign Subsidiary that is a Restricted Subsidiary; provided that no part of such Persons which have Investment is funded or Guaranteed by the Borrower or any Restricted Subsidiary that is not so executed and delivered an Accession Agreement plus the aggregate amount a CFC or is made with or consists of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock assets of the Borrower) after the Effective Date for such contributions Borrower or investments shall any Restricted Subsidiary that is not exceed $5,000,000 in any fiscal yeara CFC; and
(5w) other capital investments Investments in an aggregate outstanding amount not otherwise permitted by this Section 6.6 in any Person which is notto exceed the greater of (x) $50,000,000 and (y) 3.00% of Consolidated Net Tangible Assets as of the last day of the fiscal quarter, and will not become a Subsidiary if any, of the Borrower as a result of such capital investment provided that most recently ended for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (i) the aggregate amount of such investments outstanding at in each case determined without regard to any time plus the aggregate amount of contributions to, write-downs or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiarieswrite-offs.
Appears in 1 contract
Investments, Loans, Advances. The Borrower will not, and will not permit any of its Subsidiaries to, make or permit to exist any loans, advances or capital contributions to, or make any investment in, or purchase or commit to purchase any stock or other securities or evidences of indebtedness of or interests in in, any Person, except the following (provided that before and after giving effect thereto there shall exist no Default):
(1a) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures to the extent permitted by Section 6.5(b)Investments;
(2b) trade and customer accounts receivable which are for goods furnished or services rendered in the ordinary course of business and are payable in accordance with customary trade terms;
(3c) ordinary course of business contributions, loans or advances to, or investments in, (i) a direct or indirect Subsidiary of the Borrower, provided that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrower;
(4d) contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000that, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements Agreement and a certificate covering the same matters described in clause (iii) of Section 3.1(a)(iii3.1(a) with respect to such Person, and the Borrowers' Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph ;
(e) below loans and advances to officers, directors and employees of the Borrower and its Subsidiaries so long as the aggregate principal amount thereof outstanding at any time shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal year2,000,000; and
(5f) other capital investments not otherwise permitted by this Section 6.6 in any Person which is not, and will not become become, a Subsidiary of the Borrower as a result of such capital investment investment, provided that (i) the aggregate amount of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,00010,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiaries.
Appears in 1 contract
Investments, Loans, Advances. The Borrower will notNone of the Credit Parties shall, and will not nor shall they permit any of its their Subsidiaries which are Restricted Affiliates to, make any Investment, loan or permit advance to exist any loans, advances or capital contributions to, or make any investment in, or purchase or commit to purchase any stock or other securities or evidences of indebtedness of or interests in any Person, Person except the following (provided that after giving effect thereto there shall exist no Default):as follows:
(1a) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures loans or advances to the extent permitted by Section 6.5(b9.11 hereof (provided this exception will not permit loans, advances or Investments in, to or for the benefit of the Supplemental Credit Parties);
(2b) trade Permitted Investments;
(c) Investments permitted by Section 9.5 (provided this exception will not permit loans, advances or Investments in, to or for the benefit of the Supplemental Credit Parties);
(d) loans or advances by the Company to the Operating Affiliates to the extent evidenced by debt instruments in which the Collateral Agent has a perfected, first priority security interest;
(e) Investments in Hedge Agreements not entered for a speculative purpose;
(f) any endorsement of a check or other medium of payment for deposit or collection, or any similar transaction in the ordinary course of business;
(g) receivables acquired and customer accounts receivable which are for goods furnished or services rendered owing in the ordinary course of business and are payable or dischargeable in accordance with customary trade terms;
(3h) ordinary course of business contributions, loans or advances to, or investments in, Investments acquired by a Person (i) in exchange for any other Investment held by such Person in connection with or as a direct result of a bankruptcy, workout, reorganization or indirect Subsidiary recapitalization of the Borrower, provided that if, at any time the aggregate amount issuer of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor other Investment or (ii) the Borrower;
(4) contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of a foreclosure by such contribution Person with respect to any secured Investment or investmentother transfer of title with respect to any secured Investment in default;
(i) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses in accordance with GAAP, including loans and advances to employees for business related travel expenses, moving expenses, costs of replacement homes and other similar expenses, in each case incurred in the ordinary course of business;
(j) additional Investments in the capital of any Restricted Affiliate (other than Nextel Argentina Parent or any of its Subsidiaries), so long as both (i) all of the Capital Stock of the Restricted Affiliate owned by the Company or a Restricted Affiliate has been pledged or charged to the Collateral Agent pursuant to a Share Pledge Agreement or another pledge or charge agreement substantially similar thereto and is not subject to any other Lien, except for Permitted Liens and (ii) such Restricted Affiliate has complied with the guarantee, pledge or charge and security requirements under Sections 5 and 6;
(k) to the extent not permitted by the foregoing clauses, equity investments existing on the Closing Date in any Subsidiaries (and any increases thereof attributable to increases in retained earnings);
(l) loans and advances by the Company to any Restricted Affiliate (other than Nextel Argentina Parent or any of its Subsidiaries) evidenced by a note made payable to the Company and concurrently pledged or charged by the Company as Collateral to secure the Obligations so long as such Restricted Affiliate has complied with the guarantee, pledge or charge and security requirements under Sections 5 and 6;
(m) Investments by the Company or a Restricted Affiliate of the Company in a Person (other than Nextel Argentina Parent or any of its Subsidiaries) which will, upon the making of such Investment, become a Wholly-Owned Subsidiary and a Restricted Affiliate of the Company or be merged or consolidated with or into or transfer or convey all or substantially all its assets to, the Company or a Wholly-Owned Subsidiary of the Company which is a Restricted Affiliate of the Company; provided that (i) if such Person’s primary business is related, ancillary or complementary to the aggregate amount businesses of the Company and its Restricted Affiliates on the date of such contributions to or investments in any such Person exceeds $5,000,000Investment, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) such Restricted Affiliate has complied with the aggregate amount of all such contributions toguarantee, pledge or investments in any such Persons which have not so executed charge and delivered an Accession Agreement plus the aggregate amount of investments security requirements under paragraph (e) below shall not exceed $5,000,000; Sections 5 and 6 and (iii) all of the aggregate consideration paid Capital Stock of such Person owned by the Company or a Restricted Affiliate shall (A) be pledged or charged to the Collateral Agent pursuant to a Share Pledge Agreement or another pledge or charge agreement substantially similar thereto and (B) not be subject to any other Lien, except for Permitted Liens;
(n) Investments acquired as a capital contribution to the Company or in exchange for capital stock (other than Redeemable Stock) of the Company;
(o) Investments consisting of guarantees of “Permitted Sale Leaseback Obligations” of Nextel Brazil or its Subsidiaries in accordance with the provisions of the EFA (as such term is defined in the form of common stock of EFA as in effect on the BorrowerClosing Date);
(p) after additional Investments in Nextel Brazil in an amount not to exceed the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal yearPermitted Amount, which are applied by Nextel Brazil to repay amounts outstanding under the EFA; and
(5q) other capital investments additional Investments, loans and advances not otherwise permitted by to exceed $10,000,000 in the aggregate. Notwithstanding anything contained in this Section 6.6 in any Person which is not9.9 to the contrary, and will not become a Subsidiary the Company may make, with the consent of the Borrower as a result of such capital investment Required Lenders, which consent shall not be unreasonably withheld or delayed, equity Investments in Persons engaged in businesses in which the Company is permitted to engage under Section 9.11; provided that (iA) all such Persons shall be deemed to be “Restricted Affiliates” for all purposes of this Agreement and the other Credit Documents, (B) the aggregate amount Capital Stock of such investments outstanding Persons shall be subject to a Share Pledge Agreement or another pledge or charge agreement substantially similar thereto and shall not be subject to any other Lien, except for Permitted Liens, and (C) the Company shall have and maintain while such Investment exists, directly or indirectly, the requisite and assignable (for the benefit of the Lenders) control over such Person to prevent it from incurring Indebtedness, or taking any other action at any time plus the aggregate amount time, which is in contravention of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date provisions of this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse which are applicable to the Borrower and its SubsidiariesRestricted Affiliates.
Appears in 1 contract
Samples: Master Equipment Financing Agreement (Nii Holdings Inc)
Investments, Loans, Advances. The Borrower will notNone of the Affiliated Credit Parties shall, and will not nor shall they permit any of its their Restricted Subsidiaries to, make any Investment, loan or permit advance to exist any loans, advances or capital contributions to, or make any investment in, or purchase or commit to purchase any stock or other securities or evidences of indebtedness of or interests in any Person, Person except the following (provided that after giving effect thereto there shall exist no Default):as follows:
(1a) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures loans or advances to the extent permitted by Section 6.5(b)9.12 hereof;
(2b) trade Permitted Investments;
(c) Investments permitted by Section 9.5;
(d) loans or advances by the Company to the Borrowing Affiliates to the extent evidenced by the Borrowing Affiliate Notes or other debt instruments pledged under a Pledge Agreement
(e) Investments in Hedge Agreements not entered for a speculative purpose;
(f) any endorsement of a check or other medium of payment for deposit or collection, or any similar transaction in the ordinary course of business;
(g) receivables acquired and customer accounts receivable which are for goods furnished or services rendered owing in the ordinary course of business and are payable or dischargeable in accordance with customary trade terms;
(3h) ordinary course of business contributions, loans or advances to, or investments in, Investments acquired by a Person (i) in exchange for any other Investment held by such Person in connection with or as a direct result of a bankruptcy, workout, reorganization or indirect Subsidiary recapitalization of the Borrower, provided that if, at any time the aggregate amount issuer of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor other Investment or (ii) the Borrower;
(4) contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of a foreclosure by such contribution Person with respect to any secured Investment or investmentother transfer of title with respect to any secured Investment in default;
(i) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses in accordance with GAAP, including loans and advances to employees for business related travel expenses, moving expenses, costs of replacement homes and other similar expenses, in each case incurred in the ordinary course of business;
(j) additional Investments in the capital of any Restricted Subsidiary, so long as all of the Capital Stock of the Restricted Subsidiary owned by the Company or a Restricted Subsidiary has been pledged to the Collateral Agent pursuant to the Company Pledge Agreement or another pledge agreement substantially similar thereto and is not subject to any other Lien, except for Permitted Liens;
(k) to the extent not permitted by the foregoing clauses, equity investments existing on the Closing Date in any Subsidiaries (and any increases thereof attributable to increases in retained earnings);
(l) loans and advances by the Company to any Borrowing Affiliate evidenced by a note made payable to the Company and concurrently pledged by the Company as Collateral to secure the Obligations;
(m) Investments by the Company or a Restricted Subsidiary of the Company in a Person which will, upon the making of such Investment, become a Restricted Subsidiary of the Company or be merged or consolidated with or into or transfer or convey all or substantially all its assets to, the Company or a Restricted Subsidiary of the Company; provided that (i) if such Person's primary business is related, ancillary or complementary to the aggregate amount businesses of the Company and its Restricted Subsidiaries on the date of such contributions to or investments in any Investment and (ii) all of the Capital Stock of such Person exceeds $5,000,000, owned by the Borrower Company or a Restricted Subsidiary shall have caused such Person to have executed and delivered (A) be pledged to the Collateral Agent pursuant to the Company Pledge Agreement or another pledge agreement substantially similar thereto and (B) not be subject to any other Lien, except for Permitted Liens;
(n) Investments acquired as a capital contribution to the Company or in exchange for capital stock (other than Redeemable Stock) of the Company;
(o) Investments in a Person which has ceased to be a Restricted Subsidiary or ceases to observe any of the provisions of the covenants applicable to it as a result of an Accession Agreement, related financing statements and a certificate covering the same matters event similar to those described in Section 3.1(a)(iii11.1(l), (m) or (n); provided (I) such Investment is made solely with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount proceeds of all such contributions a substantially concurrent capital contribution to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount sale of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid capital stock (other than in Redeemable Stock) of, the form of common stock of the BorrowerCompany and (II) after the Effective Date for such contributions or investments Investment such event shall not exceed $5,000,000 in any fiscal yearno longer continue and such Person shall be a Restricted Subsidiary; and
(5p) other capital investments additional Investments, loans and advances not otherwise permitted by to exceed $10,000,000 in the aggregate. Notwithstanding anything contained in this Section 6.6 in any Person which is not9.9 to the contrary, and will not become a Subsidiary the Company may make, with the consent of the Borrower as a result of such capital investment Required Lenders, which consent shall not be unreasonably withheld or delayed, equity Investments in Persons engaged in businesses in which the Company is permitted to engage under Section 9.12; provided that (iA) all such Persons shall be deemed to be "Restricted Subsidiaries" for all purposes of this Agreement and the other Credit Documents, (B) the aggregate amount Capital Stock of such investments outstanding Persons shall be subject to the Company Pledge Agreement or another pledge agreement substantially similar thereto and shall not be subject to any other Lien, except for Permitted Liens, and (C) the Company shall have and maintain while such Investment exists, directly or indirectly, the requisite and assignable (for the benefit of the Lenders) control over such Person to prevent it from incurring Indebtedness, or taking any other action at any time plus the aggregate amount time, which is in contravention of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date provisions of this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse which are applicable to the Borrower and its Restricted Subsidiaries.
Appears in 1 contract
Samples: Master Equipment Financing Agreement (Nextel International Inc)
Investments, Loans, Advances. The (a) Neither the Borrower nor any Subsidiary will not, and will not permit make any of its Subsidiaries loan or advance to, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to or Guarantee any obligations of (each, an "Investment"), any Person, except that:
(i) the Borrower or any Subsidiary may make or permit to exist remain outstanding Investments in the Borrower or any loans, advances or capital contributions toSubsidiary, or make any investment in, or purchase or commit to purchase any stock or other securities or evidences of indebtedness of or interests in any Person, except the following (other entity which will be a Subsidiary immediately after such Investment; provided that after giving effect thereto there shall exist no Default):
(1) the purchase of Liquid Investments with such Investment may be made in any Partnership Subsidiary unless such Investment is a Bank and the purchase of Subordinated Debentures to the extent permitted by Section 6.5(bPermitted Partnership Investment, as such term is defined below in Subsection 6.12(b);
(2ii) trade the Borrower or any Subsidiary may own, purchase or acquire any Permitted Cash Investment, and customer may own any Investment existing at the Effective Date;
(iii) the Borrower or any Subsidiary may make investments in property used or useful in the business of the Borrower and its Subsidiaries;
(iv) the Borrower or any Subsidiary may own accounts receivable, and conversions of overdue accounts receivable which are for to notes, from the sale of goods furnished or and services rendered in the ordinary course of business of the Borrower and are payable in accordance with customary trade termsits Subsidiaries;
(3v) the Borrower or any Subsidiary may make prepayments in the ordinary course of business contributionsor to obtain trade credit;
(vi) the Borrower and its Subsidiaries may endorse negotiable instruments for collection in the ordinary course of business;
(vii) the Borrower and its Subsidiaries may make travel, loans relocation and other like advances to officers and employees in the ordinary course of business; and
(viii) subject to the provisions of Section 6.04, the Borrower or advances to, any Subsidiary may make or investments in, (iacquire any Investment not otherwise permitted by the foregoing clauses of this Subsection 6.12(a) a direct or indirect Subsidiary of the Borrower, provided that if, at any time immediately after such Investment is made or acquired, the aggregate amount of all such contributionsInvestments made pursuant to this clause (viii), loans or advances to, or investments in, net of repayment of any such Investments, does not exceed 25% of the Consolidated Net Worth of the Borrower as of the date of such determination.
(b) Notwithstanding the foregoing, neither the Borrower nor any non-Partnership Subsidiary occurring exceeds will make any Investment in any Partnership Subsidiary, except for the following (each a "Permitted Partnership Investment"):
(i) transfers of assets made after the Effective Date so long as the aggregate fair market value of such assets does not exceed $5,000,00047,500,000;
(ii) transfers of cash by the Borrower to any Partnership Subsidiary in the form of indebtedness for borrowed money owing by any Partnership Subsidiary to the Borrower in an aggregate outstanding principal amount that does not exceed $50,000,000;
(iii) the Partnership Leases in existence on the date hereof and described in clauses (a), (b), (c) and (d) of the definition of "Partnership Leases," and other Partnership Leases entered into after the date hereof with respect to which (A) the Borrower or a direct Subsidiary of the Borrower is the lessor and a Partnership Subsidiary is the lessee and (B) the aggregate costs incurred by such lessors to acquire or construct the equipment or facilities subject to such Partnership Leases do not exceed $50,000,000;
(iv) the Borrower or any Subsidiary may Guarantee any obligation (other than Debt) arising in the ordinary course of business of any Partnership Subsidiary;
(v) purchases by the Borrower or any Subsidiary of First Mortgage Notes issued and outstanding prior to the Effective Date;
(vi) from and after December 31, 1996, the Borrower or any non-Partnership Subsidiary may make any Investment in any Partnership Subsidiary not otherwise permitted by the foregoing clauses of this Subsection 6.12(b), provided that, at the time such Investment is proposed to be made and after giving effect thereto, (A) the ratio determined pursuant to Section 6.07 shall have caused such Subsidiary been not less than 2.25 to 1.0 as at the end of each of the two non-Turnaround fiscal quarters then most recently ended, (if not then a GuarantorB) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrower;
(4) contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, the Borrower no Default shall have caused such Person to have executed occurred and delivered to the Agent an Accession Agreement, related financing statements be continuing and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (iiC) the aggregate amount of all such contributions toInvestments made pursuant to this clause (vi), or investments in net of repayment of any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below Investments, shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal year; and
(5) other capital investments not otherwise permitted by this Section 6.6 in any Person which is not, and will not become a Subsidiary of the Borrower as a result of such capital investment provided that (i) the aggregate amount of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiaries100,000,000.
Appears in 1 contract
Investments, Loans, Advances. Guarantees and -------------------------------------------- Acquisitions. The Borrower will not, and will not permit any of its ------------- Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any 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 loansloans or advances to, advances or capital contributions toGuarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or commit to purchase otherwise acquire (in one transaction or a series of transactions) any stock or assets of any other securities or evidences of indebtedness of or interests in any PersonPerson constituting a business unit, except the following (provided that after giving effect thereto there shall exist no Default):except:
(1a) Permitted Investments;
(b) investments existing on the date hereof and set forth on Schedule 6.04;
(c) the purchase acquisition of Liquid Investments with the St. Xxxx Company Interests for an aggregate amount not to exceed $1,500,000 and investments by the Borrower and its Subsidiaries in Equity Interests in their respective Subsidiaries; provided -------- that (i) any such Equity Interests held by a Bank Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to common stock of a Foreign Subsidiary referred to in Section 5.12) and (ii) the purchase aggregate amount of Subordinated Debentures investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Subsidiaries that are not Loan Parties (excluding (A) all such investments, loans, advances and Guarantees existing on the Effective Date and set forth on Schedule 6.04 and (B) the investment by or on behalf of the Borrower to acquire the St. Xxxx Company Interests, to the extent such investment does not exceed $1,500,000) shall not exceed $12,500,000 at any time outstanding; provided further, that any investments in joint ventures ---------------- permitted by clause (l) below shall reduce the amount available for investments, loans, advances and Guarantees pursuant to clause (ii) of the immediately preceding proviso;
(d) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary; provided that --------
(i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Agreement and (ii) the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(ii) above;
(e) Guarantees constituting Indebtedness permitted by Section 6.5(b)6.01; provided that (i) a Subsidiary shall not Guarantee the Subordinated Debt -------- unless (A) such Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides for the release and termination thereof, without action by any party, upon any release and termination of such Guarantee of the Obligations, and (ii) the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(ii) above;
(2f) trade investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and customer accounts receivable which are for goods furnished disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) loans or services rendered advances made by the Borrower and its Subsidiaries to their respective directors, officers and employees on an arm's length basis in the ordinary course of business; provided that the aggregate amount of -------- all loans and 63 advances permitted by this clause (g) shall not exceed $500,000 at any time outstanding;
(h) Permitted Acquisitions; provided that the sum of all consideration paid or otherwise delivered in connection with Permitted Acquisitions (including the principal amount of any Indebtedness and the aggregate liquidation preference of any Permitted Acquisition Preferred Stock issued as deferred purchase price and the fair market value of any other non-cash consideration, but excluding common stock issued by the Borrower), plus the aggregate principal amount of all unsecured Indebtedness otherwise incurred and all secured or unsecured Indebtedness otherwise assumed, in each case in connection with, or resulting from, Permitted Acquisitions (including Indebtedness of any acquired Persons outstanding at the time of Permitted Acquisitions), shall not exceed, on a cumulative basis (i) $7,500,000 during any fiscal year and (ii) $20,000,000 during the term of this Agreement;
(i) receivables owing to the Borrower or a Subsidiary if created in the ordinary course of business and are payable or dischargeable in accordance with customary trade terms;
terms (3) including the dating of receivables and extensions of payment in the ordinary course of business contributions, loans or advances to, or investments in, (iconsistent with past practices) a direct or indirect Subsidiary of the Borrower, provided that if, at any time the aggregate amount of all Borrower or such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the BorrowerSubsidiary;
(4j) contributions toacquisitions of property, or capital plant and equipment that constitute a business unit and are Capital Expenditures otherwise permitted by Section 6.12;
(k) investments in a of any Person which, prior to existing at the time such contribution or investment, is not a Subsidiary but which Person becomes a Subsidiary or at the time such Person merges or consolidates with the Borrower or any of its Subsidiaries, in either case, as a result of such contribution or investmenta Permitted Acquisition in compliance with the terms of this Agreement, provided that such investments were not made by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Subsidiary or such merger or consolidation;
(il) if the investments in joint ventures in an aggregate amount of such contributions not to or investments in any such Person exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; and ;
(iiim) investments consisting of loans by the aggregate consideration paid (other than in Borrower or its Subsidiaries to employees of the form Borrower or its Subsidiaries made solely for the purpose of common stock funding purchases by such employees from the Borrower of the Borrower) after the Effective Date for such contributions or investments shall 's capital stock in an amount not exceed exceeding $5,000,000 in 2,000,000 at any fiscal yeartime outstanding; and
(5n) other capital investments not otherwise permitted by this Hedging Agreements entered into in compliance with Section 6.6 in any Person which is not, and will not become a Subsidiary of the Borrower as a result of such capital investment provided that (i) the aggregate amount of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiaries6.07.
Appears in 1 contract
Investments, Loans, Advances. The Borrower will not, and will not permit any of its Subsidiaries to, make or permit to exist any loans, advances or capital contributions to, or make any investment in, or purchase or commit to purchase any stock or other securities or evidences of indebtedness of or interests in any Person, except the following (provided that after giving effect thereto there shall exist no Default):
(1a) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures to the extent permitted by Section 6.5(b)Bank;
(2b) trade and customer accounts receivable which are for goods furnished or services rendered in the ordinary course of business and are payable in accordance with customary trade terms;
(3c) ordinary course of business contributions, loans or advances to, or investments in, (i) a direct or indirect Subsidiary of the Borrower, provided that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring after August 11, 1995 exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii3.01(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrower;
(4d) contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that (i) if the aggregate amount of such contributions to or investments in any such Person occurring after August 11, 1995 exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii3.01(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal year; and
(5e) other capital investments not otherwise permitted by this Section 6.6 6.06 in any Person which is not, and will not become a Subsidiary of the Borrower as a result of such capital investment provided that (i) the aggregate amount of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiaries.
Appears in 1 contract
Investments, Loans, Advances. Guarantees and Acquisitions; ---------------------------------------------------------- Asset Sales. -----------
(a) The Borrower will not, and nor will not it permit any Subsidiary Loan Party 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 Equity Interests in, evidences of its Subsidiaries toindebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loansloans or advances to, advances or capital contributions toGuarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or commit to purchase otherwise acquire (in one transaction or a series of transactions) any stock or assets of any other securities or evidences of indebtedness of or interests in any PersonPerson constituting a business unit, except the following (provided that after giving effect thereto there shall exist no Default):except:
(1i) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures to the extent permitted by Section 6.5(b)Permitted Investments;
(2ii) trade investments by the Borrower in Equity Interests in the Subsidiaries;
(iii) loans or advances made by the Borrower to any Subsidiary and customer made by any Subsidiary to the Borrower; provided that all such loans -------- and advances shall be evidenced by promissory notes pledged pursuant to the Borrower Pledge Agreement and shall be subordinated to the Obligations as provided in the Subordination Agreement;
(iv) Guarantees by the Borrower of obligations of the Subsidiaries; and
(v) investments by the Borrower and the Subsidiaries received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts receivable which are for goods furnished or services rendered and disputes with, customers and suppliers, in each case in the ordinary course of business business.
(b) The Borrower will not, nor will it permit any Subsidiary Loan Party to, sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest in any other Person owned by it, except:
(i) sales of inventory, obsolete, uneconomic or surplus equipment and are payable Permitted Investments, in accordance with customary trade termseach case in the ordinary course of business;
(3) ordinary course of business contributions, loans or advances to, or investments in, (i) a direct or indirect Subsidiary of the Borrower, provided that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrowertransfers constituting investments permitted by paragraph (a) of this Section or Restricted Payments permitted by Section 6.06;
(4iii) contributions tosales, transfers and dispositions by the Borrower or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and or a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal yearSubsidiary; and
(5iv) other capital investments sales and dispositions by the Borrower and the Subsidiaries of assets (other than Equity Interests in any Subsidiary) with a fair market value not otherwise exceeding, in the aggregate, $1,000,000 during any fiscal year of the Borrower; provided that all sales, transfers, leases and other dispositions permitted by -------- hereby (other than pursuant to clause (iii) above) shall be made for fair value and solely for cash consideration. Any of the foregoing provisions of this Section 6.6 in any Person which is not6.04(b) notwithstanding, and will not become a Subsidiary of the Borrower as a result and any Subsidiary Loan Party may sell or otherwise transfer obsolete, uneconomic or surplus equipment to Ericsson Wireless Communications Inc., Nortel Networks Inc. or Lucent Technologies Inc. (or any of their respective Affiliates) in connection with the purchase or other acquisition by Borrower or any Subsidiary Loan Party from such capital investment transferee or its Affiliates of upgraded equipment replacing the equipment so sold or transferred provided that (i) the aggregate amount of such investments outstanding at any time plus replacement equipment purchased or otherwise acquired performs the aggregate amount of contributions tosame general function as the equipment so sold or transferred, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in title to the same equipment sold or substantially similar line or lines of business as otherwise transferred is not transferred to the transferee until Borrower and its Subsidiaries or a line of business directly Subsidiary Loan Party acquires title to the upgraded equipment related to providing services of thereto and such upgraded equipment has become Collateral under the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and Security Agreement, (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiariesthe Subsidiary Loan Parties may not sell or otherwise transfer to Nortel Networks Inc. or Lucent Technologies Inc. or any of their respective Affiliates pursuant to this sentence any equipment financed by Lenders under this Agreement, and (iv) such sale or other transfer is made for fair value.
Appears in 1 contract
Investments, Loans, Advances. Guarantees and -------------------------------------------- Acquisitions. The Borrower will not, and will not permit any of its ------------ Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Wholly Owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loansloans or advances to, advances or capital contributions toGuarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or commit to purchase otherwise acquire (in one transaction or a series of transactions) any stock or assets of any other securities or evidences of indebtedness of or interests in any PersonPerson constituting a business unit, except the following (provided that after giving effect thereto there shall exist no Default):except:
(1a) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures Permitted Investments;
(b) investments existing on February 3, 1998, to the extent such investments would not be permitted under any other clause of this Section;
(c) investments by the Borrower and its Subsidiaries (other than the License Subsidiary or the Real Property Subsidiary) in the capital stock of their Subsidiaries; provided that any such shares of capital stock held by -------- a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to common stock of a Foreign Subsidiary referred to in Section 5.12) and no investments may be made in Subsidiaries that are not Loan Parties;
(d) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary to the 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 Pledge Agreement and no loans or advances may be made to Subsidiaries that are not Loan Parties;
(e) Guarantees constituting Indebtedness permitted by Section 6.5(b)6.01; provided that a Subsidiary shall not Guarantee any Subordinated Debt unless -------- (A) such Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of 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 Subordinated Debt provides for the release and termination thereof, without action by any party, upon any release and termination of such Guarantee of the Obligations;
(2f) trade investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and customer accounts receivable which are for goods furnished or services rendered disputes with, customers and suppliers, in each case in the ordinary course of business and are payable in accordance with customary trade termsbusiness;
(3) ordinary course of business contributions, loans or advances to, or investments in, (i) a direct the purchase of assets contemplated by the Myrtle Asset Purchase Agreement (without giving effect to any amendments to or indirect Subsidiary waivers of the Borrower, provided Myrtle Asset Purchase Agreement (other than such amendments or waivers that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if are not then adverse in a Guarantor) to have executed and delivered material respect to the Agent an Accession Agreement, related financing statements interests of the Lenders)) and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrowerpurchase of assets contemplated by the Norfolk Asset Purchase Agreement (without giving effect to any amendments to or waivers of the Norfolk Asset Purchase Agreement (other than such amendments or waivers that are not adverse in a material respect to the interests of the Lenders));
(4h) contributions to, or capital the acquisition of the AW Swap Licenses in connection with the consummation of the AW Pops Swap;
(i) investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, Bidding Entities; provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, the Borrower debt -------- investments shall have caused be made pursuant to a Bidding Entity Note and such Person to have executed Bidding Entity Note and delivered all other agreements entered into between a Bidding Entity and any Loan Party are assigned to the Agent an Accession AgreementAdministrative Agent, related financing statements as agent for the Lenders as collateral and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions topermitted by this paragraph (i), or investments in any such Persons which have when combined with Section 6.05(n), shall not so executed and delivered an Accession Agreement exceed $100,000,000 plus Equity Proceeds received after the date hereof (without duplication); provided further that the aggregate amount of investments under paragraph (e) below in Capital Stock of the Bidding Entities shall not exceed $5,000,0001,000,000;
(j) investments in the Capital Stock of the Marketing Affiliate, the consideration for which consists of the transfer of the SunCom trademark; provided that (i) all such Capital Stock is pledged pursuant to the Pledge Agreement and (iiiii) all agreements entered into between the aggregate consideration paid Marketing Affiliate and any Loan Party are assigned to the Administrative Agent, as agent for the Lenders as collateral; provided, further, that if an Event of -------- ------- Default exists, the Lenders may enforce the Loan Parties' rights with respect to such Capital Stock and agreements but may transfer such Capital Stock and assign such agreements to third parties only after obtaining any required consents from the equity holders (other than any Loan Party) in the form Marketing Affiliate, such consents not to be unreasonably withheld;
(k) loans or advances made to employees in an aggregate amount not to exceed $2,000,000 at any time outstanding;
(l) buy-backs of common stock Capital Stock of Holdings from employees upon death or termination of employment in an aggregate amount not to exceed $1,000,000 during any fiscal year of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal year; and
(5m) other capital acquisitions of or investments in Persons engaged in Related Businesses so long as (i) the consideration paid in connection with all such acquisitions or investments consists solely of cash and/or Capital Stock of Holdings with an aggregate value not otherwise permitted by this Section 6.6 in any Person which is notexcess of $30,000,000 plus Equity Proceeds after the date hereof (without duplication) and (ii) Holdings, and will not become a Subsidiary of the Borrower and the Subsidiaries shall be in Pro Forma Compliance after giving effect to any such acquisition or investment.
(n) acquisitions of Licenses and License Related Assets by the Borrower or any Subsidiary so long as a result of such capital investment provided that (i) the aggregate amount of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under permitted by this paragraph (d) above which have not executed and delivered an Accession Agreement n), when combined with 6.05(i), shall not exceed $5,000,000; 100,000,000 plus Equity Proceeds received after the date hereof (without duplication) and (ii) such Person Holdings, the Borrower and the Subsidiaries shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related Pro Forma Compliance after giving effect to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of any such other Person shall be nonrecourse to the Borrower and its Subsidiariesacquisition.
Appears in 1 contract
Samples: Credit Agreement (Triton PCS Inc)
Investments, Loans, Advances. The Guarantees and Acquisitions; ---------------------------------------------------------- Asset Sales. -----------
(a) Except as permitted by Section 6.03, the Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loansloans or advances to, advances or capital contributions toGuarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or commit to purchase otherwise acquire (in one transaction or a series of transactions) any stock or assets of any other securities or evidences of indebtedness of or interests in any PersonPerson constituting a business unit, except the following (provided that after giving effect thereto there shall exist no Default):except:
(1i) the purchase of Liquid Permitted Investments with a Bank and the purchase of Subordinated Debentures to the extent permitted (other than by Section 6.5(bAGW);
(2ii) trade investments by the Borrower and customer its Subsidiaries in the equity or capital stock of their Subsidiaries; provided that any such equity -------- or shares of capital stock shall be pledged pursuant to the Pledge Agreement;
(iii) loans or advances made by the Borrower to any Subsidiary and loans or advances made by any Subsidiary (other than AGW except with respect to intercompany obligations related to real property leases) to the Borrower or any other Subsidiary (other than AGW); provided that any such loans and -------- advances shall be evidenced by a promissory note and delivered, immediately after execution thereof, to the Collateral Agent, along with appropriate transfer documents executed in blank; provided, further, -------- ------- that upon request from the Collateral Agent, the Borrower and its Subsidiary shall execute a subordination agreement, in form and substance satisfactory to the Collateral Agent, with respect to such loans or advances, pledged pursuant to the Security Agreement;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary (other than AGW except for Indebtedness permitted by Section 6.01(h)) of Indebtedness of the Borrower or any other Subsidiary;
(v) promissory notes received by the Borrower or any Subsidiary in connection with any sales of assets permitted under paragraph (b) below; provided that, such promissory notes shall be delivered, immediately after -------- execution thereof, to the Collateral Agent, along with appropriate transfer documents executed in blank;
(vi) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts receivable which are for goods furnished or services rendered and disputes with, customers and suppliers, in each case in the ordinary course of business and are payable in accordance with customary trade termsbusiness;
(3vii) investments set forth on Schedule 6.04(a);
(viii) payroll, travel and similar advances made in the ordinary course of business contributions, loans or advances to, or business; and
(ix) other investments in, (i) a direct or indirect Subsidiary of in which the Borrower, provided that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, only consideration paid by the Borrower shall have caused such or any Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrower;
(4) contributions to, or consists of capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal year; and.
(5b) other capital investments not otherwise Except as permitted by this Section 6.6 in any Person which is 6.03, the Borrower will not, and will not become a Subsidiary permit any of its Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset, including any capital stock (but excluding issuances of capital stock of the Borrower as a result of such capital investment provided that Borrower), except:
(i) sales of inventory, used, obsolete or surplus equipment and Permitted Investments in the aggregate amount ordinary course of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; business;
(ii) such Person shall be in the same transfers constituting investments permitted by paragraph (a)(i) and (ii) of this Section or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and Restricted Payments permitted by Section 6.06;
(iii) the liabilities of such other Person shall be nonrecourse Like Kind Exchanges;
(iv) sales, transfers and dispositions to the Borrower or a Subsidiary (other than AGW except with respect to sales, transfers and its Subsidiariesassignments of interests in real property); and
(v) sales, transfers and dispositions of assets (other than those of AGW), the Net Proceeds with respect to which are applied in accordance with Section 2.09(b); provided further that all sales, transfers, leases and other dispositions ---------------- permitted hereby (other than pursuant to clauses (iii) and (iv) above) shall be made for fair market value and at least 80% of the consideration received therefor shall consist of cash.
Appears in 1 contract
Investments, Loans, Advances. The Borrower will not, and will not permit any of its Subsidiaries to, make or permit to exist any loans, advances or capital contributions to, or make any investment in, or purchase or commit to purchase any stock or other securities or evidences of indebtedness Indebtedness of or interests in any Person, except the following (provided that after giving effect thereto there shall exist no Default):following:
(1a) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures to the extent permitted by Section 6.5(b)Investments;
(2b) trade and customer accounts receivable which are for goods furnished receivables owing to the Borrower or services rendered its Subsidiaries created or acquired in the ordinary course of business and are payable in accordance with on customary trade termsterms of the Borrower or such Subsidiary and in compliance with the arm’s-length requirements of Section 6.8;
(3c) Investments received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(d) Hedging Transactions entered into in compliance with Section 6.2;
(e) deposits made in the ordinary course of business contributions, loans or advances to, or investments in, (i) a direct or indirect Subsidiary consistent with past practices to secure the performance of the Borrower, provided that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrowerleases;
(4f) unsecured intercompany loans, advances and capital contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, from the Borrower shall have caused such Person to have executed and delivered any of its Subsidiaries from any of its Subsidiaries to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to Borrower or any other such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal year; andSubsidiaries except as expressly restricted hereunder;
(5g) other capital investments not otherwise permitted loans and advances by this Section 6.6 in any Person which is not, and will not become a Subsidiary of the Borrower as a result of such capital investment provided that (i) the aggregate amount of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line to employees of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on for (i) short-term loans in an aggregate amount of no greater than $2,000,000 at any one time outstanding and in an amount no greater than $1,000,000 for any Person, (ii) moving and travel expenses and other similar expenses; in each case incurred in the date this Agreement is executed; ordinary course of business, and (iii) loans in an aggregate amount of no greater than $5,000,000 for purchases of stock of the liabilities Borrower by officers of such other Person shall be nonrecourse to the Borrower or its Subsidiaries;
(h) joint ventures between any foreign Subsidiary of the Borrower and any other Person;
(i) the purchase of stock in, or an investment by a foreign Subsidiary of the Borrower in, an insurance company for the purpose of obtaining credit and political risk insurance for export sales;
(j) the purchase or acquisition of stock in the Borrower for a Code Section 401(k) plan, Code Section 423 plan or Plan of the Borrower or any of its Subsidiaries;
(k) as permitted by Sections 6.5 and 6.6; and
(l) Investments in Unrestricted Subsidiaries and Investments in minority interests in entities engaged primarily in a Permitted Business, provided that none of the Borrower or its Subsidiaries shall be liable for any Indebtedness or other obligations of any such Unrestricted Subsidiaries or entities and all such Investments (including any future required capital contributions) do not exceed in the aggregate $25,000,000 at any time outstanding, the value of such Investments if not made in cash to be based upon the fair market value thereof as reasonably determined by the Borrower’s Board of Directors;
(m) other Investments not to exceed $25,000,000 in the aggregate at any time.
Appears in 1 contract
Investments, Loans, Advances. Guarantees and -------------------------------------------- Acquisitions. The Borrower will not, and will not permit any of its ------------- Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that is not a wholly owned Subsidiary upon giving effect 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 loansloans or advances to, advances or capital contributions toGuarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or commit otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (collectively "Investments"), except:
(a) Permitted Investments and transactions permitted by Section 6.04;
(b) Investments existing or contractually committed to purchase by the Borrower on the date hereof or other Investments set forth on Schedule 6.05, to the extent such Investments would not be permitted under any other clause of this Section;
(c) Investments by the Borrower in the capital stock of its Subsidiaries or in the capital stock or equity interests of any joint venture or other securities Person entered into by the Borrower; provided that (i) -------- certificates, if any, representing equity or evidences partnership interests of indebtedness such Subsidiary, joint venture or other Person held by a Loan Party as a result thereof shall be delivered pursuant to the Pledge Agreement (subject to the limitations applicable to common stock of or interests a Foreign Subsidiary referred to in any PersonSection 5.13) and (ii) such Investments (other than Investments in Loan Parties) may not exceed $50,000,000 in the aggregate, except that Investments, in addition to such $50,000,000, in Foreign Subsidiaries may be made by the following Borrower in an amount not to exceed $50,000,000 in the aggregate;
(d) Investments by the Borrower and its Subsidiaries in IRUs and other Telecommunications Assets; provided that such Investments (a) are within the ordinary course -------- of business, (b) are in an aggregate amount not in excess of $100,000,000; provided that the calculation of such aggregate amount shall exclude any -------- Guarantees by the Borrower of Indebtedness incurred by a Subsidiary in connection with the purchase of IRUs or other Telecommunications Assets, and (c) both before and after giving effect thereto there shall exist no Default):thereto, the Borrower is in pro forma compliance with the covenants set forth in Section 6.12;
(1e) loans, advances, Guarantees or other Indebtedness made by the purchase of Liquid Investments with Borrower to any Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary; provided that any such loans and advances made by a Bank -------- Loan Party after the Effective Date shall (within 30 days thereafter) be evidenced by a promissory note pledged pursuant to the Pledge Agreement; and provided further, that the purchase of Subordinated Debentures Borrower shall not, and shall cause the -------- ------- Subsidiaries not to, make loans, advances, Guarantees or other Indebtedness to any Subsidiary to the extent the Borrower has not delivered, or caused to be delivered (to the extent permitted by Section 6.5(bapplicable law in the case of pledges by Foreign Subsidiaries), to the Collateral Agent the certificates representing 100% of the equity or partnership interests of such Subsidiary (or, in the case of any Foreign Subsidiary, certificates representing 65% of the equity or partnership interests of such Foreign Subsidiary excluding directors' qualifying shares);
(2f) trade Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and customer accounts receivable which are disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) so long as both before and after giving effect thereto, the Borrower would be in pro forma compliance with the covenants set forth in Section 6.12, Non-Hostile Acquisitions solely for goods furnished stock and/or cash consideration in an aggregate amount not greater than $150,000,000 with respect to each such Non-Hostile Acquisition; provided that any such Non- -------- Hostile Acquisition shall be consummated in accordance with the applicable law;
(h) any payment permitted under Section 6.08;
(i) advances to employees or services rendered officers of the Borrower in the ordinary course of business and are payable in accordance with customary trade terms;
(3) ordinary course of business contributions, loans or advances to, or investments in, (i) a direct or indirect Subsidiary of the Borrower, provided that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrower;
(4) contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary so long as a result of such contribution or investment, provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below advances shall not exceed $5,000,0002,000,000 outstanding at one time;
(j) accounts receivable created or acquired in the ordinary course of business of the Borrower or any Subsidiary and Investments arising from transactions by the Borrower or any Subsidiary with trade creditors or customers in the ordinary course of business (including any such Investment received pursuant to any plan of reorganization or similar arrangement pursuant to the bankruptcy or insolvency of such trade creditors or customers or otherwise in settlement of a claim);
(k) loans in the ordinary course of business to employees, officers or directors of the Borrower or a Subsidiary to purchase capital stock of the Borrower pursuant to the terms of stock benefit plans; provided that any -------- such loan does not result in the payment of any cash or other property by the Borrower to any party in connection therewith; and
(l) Guarantees and other Indebtedness permitted by Section 6.01. For purposes of determining compliance with this Section 6.05, in the event that an item of Indebtedness may be incurred by meeting the criteria of one or more of the types of Investments described in any clause of this Section 6.05 (or the definition of the terms used therein), the Borrower, in its sole discretion, may (i) classify such item of Investment under and comply with any of such clauses of this Section 6.05 (or any of such definitions), as applicable, (ii) classify and divide such item of Investment into more than one of such clauses (or definitions), as applicable, and (iii) the aggregate consideration paid elect to comply with such clauses (other than in the form of common stock of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 definitions), as applicable, in any fiscal year; and
(5) other capital investments not otherwise permitted by this Section 6.6 in any Person which is not, and will not become a Subsidiary of the Borrower as a result of such capital investment provided that (i) the aggregate amount of such investments outstanding at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiariesorder.
Appears in 1 contract
Samples: Credit Agreement (Psinet Inc)
Investments, Loans, Advances. Guarantees and Acquisitions; Asset Sales.
(a) The Borrower Parent will not, and nor will not it permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a 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 loansloans or advances to, advances or capital contributions toGuarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or commit to purchase otherwise acquire (in one transaction or a series of transactions) any stock Special Service License or any assets of any other securities or evidences of indebtedness of or interests in any PersonPerson constituting a business unit, except the following (provided that after giving effect thereto there shall exist no Default):except:
(1i) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures to the extent permitted by Section 6.5(b)Permitted Investments;
(2ii) trade investments by the Parent and customer its Restricted Subsidiaries in the capital stock of their respective Restricted Subsidiaries; provided that the sum of the aggregate amount of outstanding investments made by the Parent and its Restricted Subsidiaries that are Loan Parties in, and loans and advances made by the Parent and its Restricted Subsidiaries that are Loan Parties to, Restricted Subsidiaries that are not Loan Parties, plus the aggregate amount of obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by the Parent, shall not at any time exceed $10,000,000; provided further that (A) investments described in clause (xi) below and (B) Guarantees by Loan Parties of Indebtedness of Special Purpose Equipment Subsidiaries and payment by the Parent of principal of and interest on such Indebtedness and related expenses shall be permitted without regard to the limitation set forth in the foregoing proviso;
(iii) loans or advances made by the Parent to any Restricted Subsidiary and made by any Restricted Subsidiary to the Parent or any other Restricted Subsidiary; provided that the aggregate amount of such loans and advances made by the Parent and its Restricted Subsidiaries that are Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in the proviso to clause (ii) above;
(iv) Guarantees by the Parent of obligations of the Restricted Subsidiaries, Guarantees by Guarantor Subsidiaries of Indebtedness of any Special Purpose Equipment Subsidiary and Guarantees by WinStar Wireless, Inc. of obligations (other than Indebtedness) of any other Guarantor Subsidiary; provided that the aggregate amount of outstanding obligations Guaranteed by the Parent of Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in the proviso to clause (ii) above;
(v) Permitted Acquisitions and the acquisitions described in Schedule 6.04A that are made substantially on the terms described on such Schedule;
(vi) promissory notes received by the Parent or any Restricted Subsidiary in connection with sales of assets (other than assets constituting Collateral) permitted by paragraph (b) below;
(vii) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts receivable which are and disputes with, customers and suppliers, in each case in the ordinary course of business;
(A) promissory notes of directors, officers or employees of the Parent or any Restricted Subsidiary issued to the Parent in exchange for goods furnished or services rendered common stock of the Parent, (B) payroll, travel and similar advances made in the ordinary course of business and that are payable expected at the time such advances are made ultimately to be treated as expenses in accordance with customary trade termsGAAP and (C) other loans and advances by the Parent or any Restricted Subsidiary to their respective directors, officers or employees in an aggregate principal amount not exceeding $1,000,000 at any one time outstanding;
(3ix) ordinary course of business contributions, loans or advances to, or investments in, (i) a direct or indirect Subsidiary of existing on the Borrower, provided that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed Effective Date and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined set forth on with respect to each Guarantor or (ii) the BorrowerSchedule 6.04B;
(4x) contributions toto the extent that the consideration therefor consists solely of common stock or Permitted Preferred Stock of the Parent or is paid for in cash out of the Net Proceeds of a substantially concurrent issuance of common stock or Permitted Preferred Stock of the Parent (or options, warrants and other rights to purchase shares of such common stock or Permitted Preferred Stock) (other than common stock or Permitted Preferred Stock of the Parent (or options, warrants and other rights to purchase shares of such commen stock or Permitted Preferred Stock) issued to and paid for by a Subsidiary), investments in Unrestricted Subsidiaries, joint ventures and minority interests in Persons engaged in any business or activity in which the Parent and the Restricted Subsidiaries are permitted to engage;
(xi) investments by the Parent in Subsidiaries resulting from the allocation by the Parent of corporate overhead expenses paid by the Parent among the Subsidiaries pursuant to book entries made in accordance with past practices;
(xii) investments owned by a Person at the time such Person is acquired pursuant to an acquisition permitted by clause (v) above; provided that such investment is not made in connection with, or capital investments in contemplation of, such acquisition;
(xiii) the acquisition of the shares or other equity interests in a Person which, prior to such contribution or investment, is not a Subsidiary but which that becomes a Restricted Subsidiary as a result upon consummation of such contribution or investment, acquisition; provided that (iA) if substantially all of the aggregate amount assets of such contributions to or investments in any Person consist of Other Service Licenses, (B) such Person exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid has no outstanding Indebtedness (other than Indebtedness that is repaid upon consummation of such acquisition) and (C)(x) in the form case of common stock an acquisition of shares or other equity interests in a Person that is organized under the laws of any jurisdiction in the United States of America or a substantial portion of the BorrowerOther Service Licenses of which relate to markets in the United States of America, at least 80% of all shares or other equity interests in all Restricted Subsidiaries resulting from such acquisition are owned, directly or indirectly, by the Parent, or (y) after in the Effective Date for case of any other such contributions acquisition, at least a majority of all shares or investments shall not exceed $5,000,000 other equity interests in any fiscal yearall Restricted Subsidiaries resulting from such acquisition are owned, directly or indirectly, by the Parent; and
(5xiv) other capital investments, loans, advances and Guarantees by the Parent or any of the Restricted Subsidiaries (including (x) investments not otherwise permitted by this Section 6.6 in Unrestricted Subsidiaries and (y) investments in any Person which Restricted Subsidiary existing at the time such Subsidiary is designated as an Unrestricted Subsidiary) in an aggregate amount not exceeding $30,000,000 (or, on and after January 1, 2004, $60,000,000).
(b) The Parent will not, and nor will not become it permit any of its Restricted Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset, including any capital stock of or ownership interest in any other Person owned by it, nor will the Parent permit any Restricted Subsidiary to issue (other than to the Parent or a Subsidiary wholly owned Restricted Subsidiary) any additional shares of the Borrower as a result of its capital stock or other ownership interest in such capital investment provided that Restricted Subsidiary, except:
(i) the aggregate amount sales of such investments outstanding at any time plus the aggregate amount of contributions to(A) inventory, (B) obsolete, uneconomic or investments in any Persons as contemplated under paragraph (d) above which have surplus assets not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be exceeding, in the same or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services aggregate, $5,000,000 during any fiscal year of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiaries.Parent and
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Investments, Loans, Advances. The Borrower will notGuarantees and Acquisitions Each of the Resellers, the Parent Guarantor and each of the Domestic Subsidiaries will not permit 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 its Subsidiaries tothe foregoing) of, make or permit to exist any loansloans or advances to, advances or capital contributions toGuarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or commit to purchase otherwise acquire (in one transaction or a series of transactions) any stock or assets of any other securities or evidences of indebtedness of or interests Person constituting a business unit, except:
(a) Permitted Acquisitions; provided, that the Parent Guarantor shall comply with Section 10.9 following any such Permitted Acquisition;
(b) Permitted Investments;
(c) existing investments in any Person, except Domestic Subsidiaries and other investments in existence on the following date hereof and described in Schedule 11.4;
(d) investments made by the Parent Guarantor and the Domestic Subsidiaries in Equity Interests in their respective Subsidiaries; provided that after giving effect thereto there the aggregate amount of such investments by the Loan Parties in Foreign Subsidiaries (together with outstanding intercompany loans permitted under the first proviso to paragraph (e) below and outstanding Guarantees permitted under the first proviso to paragraph (f) below) shall exist no Default):not exceed $100,000,000 at any time outstanding;
(1e) loans or advances made by the purchase of Liquid Investments with a Bank Parent Guarantor to any Subsidiary and the purchase of Subordinated Debentures made by any Domestic Subsidiary to the extent Parent Guarantor or any other Domestic Subsidiary; provided that the amount of such loans and advances made by the Loan Parties to Foreign Subsidiaries (together with outstanding investments permitted under the first proviso to paragraph (d) above and outstanding Guarantees permitted under the first proviso to paragraph (f) below) shall not exceed $100,000,000 at any time outstanding;
(f) Guarantees constituting Indebtedness permitted by Section 6.5(b)11.1; provided that the aggregate principal amount of Indebtedness of Foreign Subsidiaries that is Guaranteed by the Loan Parties (together with outstanding investments permitted under the first proviso to paragraph (d) above and outstanding intercompany loans permitted under the first proviso to paragraph (e) above) shall not exceed $100,000,000 at any time outstanding;
(2g) Guarantees by the Parent Guarantor or any Domestic Subsidiary of operating leases or of other obligations that do not constitute Indebtedness, in each case entered into by the Parent Guarantor or any Subsidiary in the ordinary course of business;
(h) extensions of trade credit in the ordinary course of business;
(i) Investments of the Parent Guarantor or any Domestic Subsidiary under Swap Agreements permitted hereunder;
(j) loans and customer accounts receivable which are for goods furnished advances to employees, officers and directors of the Parent Guarantor or services rendered any of its Domestic Subsidiaries in the ordinary course of business in an aggregate amount (for the Parent Guarantor and are payable in accordance with customary trade termsall Domestic Subsidiaries) not to exceed $2,500,000 at any one time outstanding;
(3k) 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;
(l) investments in payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business contributions, loans or advances to, or investments in, (i) a direct or indirect Subsidiary of the Borrower, provided that if, not to exceed $2,500,000 at any one time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if not then a Guarantor) to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrower;
(4) contributions to, or capital investments in a Person which, prior to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, provided that (i) if the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered to the Agent an Accession Agreement, related financing statements and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) the aggregate amount of all such contributions to, or investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock of the Borrower) after the Effective Date for such contributions or investments shall not exceed $5,000,000 in any fiscal yearoutstanding; and
(5m) other investments (whether in capital investments not otherwise permitted by this Section 6.6 in stock, evidences of indebtedness or other securities (including any Person which is notoption, and will not become a Subsidiary warrant or other right to acquire any of the Borrower as a result of such capital investment provided that (iforegoing), loans or advances, Guarantees or other investments and interests) the aggregate amount of such investments outstanding not exceeding $25,000,000 at any time plus the aggregate amount of contributions to, or investments in any Persons as contemplated under paragraph outstanding (d) above which have not executed and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person shall be in the same or substantially similar line or lines of business determined as the Borrower and its Subsidiaries amount originally advanced, loaned or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide otherwise invested, less any returns on the date this Agreement is executed; and (iii) respective investment not to exceed the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiariesoriginal amount invested).
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Investments, Loans, Advances. Guarantees and -------------------------------------------- Acquisitions. The Borrower will not, and will not permit any of its ------------- Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a Wholly Owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loansloans or advances to, advances or capital contributions toGuarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or commit to purchase otherwise acquire (in one transaction or a series of transactions) any stock or assets of any other securities or evidences of indebtedness of or interests in any PersonPerson constituting a business unit, except the following (provided that after giving effect thereto there shall exist no Default):except:
(1a) the purchase of Liquid Investments with a Bank and the purchase of Subordinated Debentures Permitted Investments;
(b) investments existing on February 3, 1998, to the extent such investments would not be permitted under any other clause of this Section;
(c) investments by the Borrower and its Subsidiaries (other than the License Subsidiary or the Real Property Subsidiary) in the capital stock of their Subsidiaries; provided that any such shares of capital stock held by -------- a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to common stock of a Foreign Subsidiary referred to in Section 5.12) and no investments may be made in Subsidiaries that are not Loan Parties;
(d) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary to the 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 Pledge 134 Agreement and no loans or advances may be made to Subsidiaries that are not Loan Parties;
(e) Guarantees constituting Indebtedness permitted by Section 6.5(b)6.01; provided that a Subsidiary shall not Guarantee any Subordinated Debt unless -------- (A) such Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of 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 Subordinated Debt provides for the release and termination thereof, without action by any party, upon any release and termination of such Guarantee of the Obligations;
(2f) trade investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and customer accounts receivable which are for goods furnished or services rendered disputes with, customers and suppliers, in each case in the ordinary course of business and are payable in accordance with customary trade termsbusiness;
(3) ordinary course of business contributions, loans or advances to, or investments in, (i) a direct the purchase of assets contemplated by the Myrtle Asset Purchase Agreement (without giving effect to any amendments to or indirect Subsidiary waivers of the Borrower, provided Myrtle Asset Purchase Agreement (other than such amendments or waivers that if, at any time the aggregate amount of all such contributions, loans or advances to, or investments in, any such Subsidiary occurring exceeds $5,000,000, the Borrower shall have caused such Subsidiary (if are not then adverse in a Guarantor) to have executed and delivered material respect to the Agent an Accession Agreement, related financing statements interests of the Lenders)) and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Guarantor and the Borrower's counsel shall deliver an opinion with respect thereto covering the matters previously opined on with respect to each Guarantor or (ii) the Borrowerpurchase of assets contemplated by the Norfolk Asset Purchase Agreement (without giving effect to any amendments to or waivers of the Norfolk Asset Purchase Agreement (other than such amendments or waivers that are not adverse in a material respect to the interests of the Lenders));
(4h) contributions to, or capital investments the acquisition of the AW Swap Licenses in a Person which, prior connection with the consummation of the AW Pops Swap;
(i) the investment of up to such contribution or investment, is not a Subsidiary but which becomes a Subsidiary as a result of such contribution or investment, $2,800,000 in the Bidding Entity; provided that (i) if all Capital Stock and debt securities of the aggregate amount of such contributions to or investments in any such Person exceeds $5,000,000, the Borrower shall have caused such Person to have executed and delivered Bidding Entity owned by a Loan Party are pledged pursuant to the Agent an Accession Agreement, related financing statements Pledge Agreement and a certificate covering the same matters described in Section 3.1(a)(iii) with respect to such Person, and the Borrowers' counsel shall deliver an opinion with respect thereto covering the matters previously opined on with regard to each Guarantor; (ii) all agreements entered into between the aggregate amount of all such contributions toBidding Entity and any Loan Party are assigned to the Administrative Agent, or as agent for the Lenders as collateral; 135
(j) investments in any such Persons which have not so executed and delivered an Accession Agreement plus the aggregate amount of investments under paragraph (e) below shall not exceed $5,000,000; and (iii) the aggregate consideration paid (other than in the form of common stock Capital Stock of the Borrower) after Marketing Affiliate, the Effective Date consideration for such contributions or investments shall not exceed $5,000,000 in any fiscal year; and
(5) other capital investments not otherwise permitted by this Section 6.6 in any Person which is not, and will not become a Subsidiary consists of the Borrower as a result transfer of such capital investment the SunCom trademark; provided that (i) all such Capital Stock is pledged pursuant to the Pledge Agreement and (ii) all agreements entered into between the Marketing Affiliate and any Loan Party are assigned to the Administrative Agent, as agent for the Lenders as collateral; provided, further, that if an Event of -------- ------- Default exists, the Lenders may enforce the Loan Parties' rights with respect to such Capital Stock and agreements but may transfer such Capital Stock and assign such agreements to third parties only after obtaining any required consents from the equity holders (other than any Loan Party) in the Marketing Affiliate, such consents not to be unreasonably withheld;
(k) loans or advances made to employees in an aggregate amount of such investments outstanding not to exceed $2,000,000 at any time plus the outstanding;
(l) buy-backs of Capital Stock of Holdings from employees upon death or termination of employment in an aggregate amount not to exceed $1,000,000 during any fiscal year of contributions to, the Borrower; and
(m) acquisitions of or investments in any Persons engaged in Related Businesses so long as contemplated under paragraph (di) above which have the consideration paid in connection with all such acquisitions or investments consists solely of cash and/or Capital Stock of Holdings with an aggregate value not executed in excess of $30,000,000 and delivered an Accession Agreement shall not exceed $5,000,000; (ii) such Person Holdings, the Borrower and the Subsidiaries shall be in the same Pro Forma Compliance after giving effect to any such acquisition or substantially similar line or lines of business as the Borrower and its Subsidiaries or a line of business directly related to providing services of the nature the Borrower and its Subsidiaries provide on the date this Agreement is executed; and (iii) the liabilities of such other Person shall be nonrecourse to the Borrower and its Subsidiariesinvestment.
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