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 loans or advances to, Guarantee any obligations of, or make or permit to exist 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; (b) investments existing on the date hereof and set forth on Schedule 6.04; (c) investments by the Borrower and its Subsidiaries in Equity Interests in their respective Subsidiaries; provided that (i) any such -------- Equity Interests held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to common stock of a Foreign Subsidiary 138 referred to in Section 5.12) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Subsidiaries that are not Loan Parties (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding; (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) above; (e) Guarantees constituting Indebtedness permitted by Section 6.01; provided that (i) a Subsidiary shall not Guarantee any Subordinated -------- Financing unless (A) such Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Financing is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Financing and (C) such Guarantee of the Subordinated Financing provides for the release and termination thereof, without action by any party, upon such Subsidiary ceasing to be a subsidiary of the Borrower (including as a result of a sale or disposition pursuant to the Pledge Agreement), 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) above; (f) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business; (g) Permitted Acquisitions; provided that (i) the consideration for -------- each Permitted Acquisition shall consist solely of cash, shares of common stock of the Borrower, Indebtedness permitted pursuant to clause (xii) of Section 6.01(a), the assumption of Indebtedness of the acquired Person or encumbering the acquired assets, Indebtedness referred to in clause (viii) of Section 6.01(a) or a combination thereof and (ii) the sum of the principal amount of all Indebtedness so assumed or otherwise resulting from Permitted Acquisitions (including Indebtedness referred to in clauses (viii) and (xii) of Section 6.01(a)) plus the cash consideration paid in connection with Permitted Acquisitions as consideration for Permitted Acquisitions shall not exceed, during any fiscal year of the Borrower, the sum of $50,000,000 plus (i) the Net Proceeds of any Acquisition Equity Financing received during such fiscal year, (ii) commencing with the fiscal year ending on or about September 30, 2001, the amount of Excess Cash Flow for the immediately preceding fiscal year that (A) is not required to be applied to make prepayments of Loans pursuant to Section 2.11(d) and (B) has not previously been applied to Permitted ECF Uses and (iii) the Net Proceeds received during such fiscal year from the sale of a non-strategic asset or division identified to the Administrative Agent prior to the date hereof; provided that, commencing with the fiscal year ending September -------- 30, 2001, the amount of allowed consideration for Permitted Acquisitions set forth above in respect of any fiscal year shall be increased by 100% of the excess, if any of (I) the amount of such consideration allowed pursuant to this paragraph for the immediately preceding fiscal year (or, in the case of the fiscal year ending September 27, 2001, for the period from the Effective Date to the end of the immediately preceding fiscal year) (disregarding any consideration permitted by reason of this proviso) less (II) the aggregate amount of consideration paid in connection with Permitted Acquisitions in such preceding period; (h) investments made after the Effective Date in joint ventures and other business entities (in each case that are not Subsidiaries of the Borrower) that are engaged in the same line or lines of business as the Borrower and its Subsidiaries in an aggregate amount not to exceed $30,000,000; (i) investments constituting a purchase of the Equity Interests not owned by the Borrower as of the Effective Date of [Caterpillar joint venture] for aggregate consideration not to exceed $15,000,000; (j) loans to employees of the Borrower and the Subsidiaries in their capacity as such, in an aggregate principal amount not to exceed $1,000,000 at any time outstanding; (k) Hedging Agreements permitted under Section 6.07; and (l) (i) non-recourse loans to employees the proceeds of which shall be used to purchase common stock of the Borrower and (ii) loans to management shareholders the proceeds of which shall be used to purchase common stock of the Borrower, provided that all loans outstanding under this clause (l) shall not exceed $4,000,000 in the aggregate at any time outstanding.
Appears in 1 contract
Investments, Loans, Advances. Guarantees and -------------------------------------------- ------------------------------------------------------ Acquisitions. ------------ The Domestic 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 Interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments by the Domestic Borrower and the Subsidiaries existing on the date hereof and set forth on Schedule 6.04;
(c) investments by the Borrower and its Subsidiaries Effective Date in Equity Interests in their respective Subsidiaries; provided that subsidiaries;
(ic) any such -------- Equity Interests held by a Loan Party shall be pledged pursuant loans or advances to the Pledge Agreement (subject to the limitations applicable to common stock of a Foreign Subsidiary 138 referred to employees not exceeding $1,000,000 in Section 5.12) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Subsidiaries that are not Loan Parties (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any one time outstanding;
(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) above;
(e) Guarantees constituting Indebtedness permitted by Section 6.01; provided that ;
(ie) a Subsidiary shall not Guarantee any Subordinated -------- Financing unless (A) such Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Financing is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Financing and (C) such Guarantee of the Subordinated Financing provides for the release and termination thereof, without action by any party, upon such Subsidiary ceasing to be a subsidiary of the Borrower (including as a result of a sale or disposition pursuant to the Pledge Agreementtransaction permitted under Section 6.03(a), 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) aboveSecuritization Transactions;
(f) other acquisitions and investments received in connection with joint ventures not exceeding, in the bankruptcy or reorganization ofaggregate (for all such acquisitions and investments by the Domestic Borrower and all Subsidiaries) $5,000,000 in fiscal year 2002, or settlement of delinquent accounts and disputes with, customers and suppliers, $10,000,000 in each case in the ordinary course of businessfiscal year 2003;
(g) Permitted AcquisitionsIntercompany Debt, subject to compliance with Section 5.10; provided that (i) the consideration for -------- each Permitted Acquisition shall consist solely of cash, shares of common stock of the Borrower, Indebtedness permitted pursuant to clause (xii) of Section 6.01(a), the assumption of Indebtedness of the acquired Person or encumbering the acquired assets, Indebtedness referred to in clause (viii) of Section 6.01(a) or a combination thereof and (ii) the sum of the principal amount of all Indebtedness so assumed or otherwise resulting from Permitted Acquisitions (including Indebtedness referred to in clauses (viii) and (xii) of Section 6.01(a)) plus the cash consideration paid in connection with Permitted Acquisitions as consideration for Permitted Acquisitions shall not exceed, during any fiscal year of the Borrower, the sum of $50,000,000 plus (i) the Net Proceeds of any Acquisition Equity Financing received during such fiscal year, (ii) commencing with the fiscal year ending on or about September 30, 2001, the amount of Excess Cash Flow for the immediately preceding fiscal year that (A) is not required to be applied to make prepayments of Loans pursuant to Section 2.11(d) and (B) has not previously been applied to Permitted ECF Uses and (iii) the Net Proceeds received during such fiscal year from the sale of a non-strategic asset or division identified to the Administrative Agent prior to the date hereof; provided that, commencing with the fiscal year ending September -------- 30, 2001, the amount of allowed consideration for Permitted Acquisitions set forth above in respect of any fiscal year shall be increased by 100% of the excess, if any of (I) the amount of such consideration allowed pursuant to this paragraph for the immediately preceding fiscal year (or, in the case of the fiscal year ending September 27, 2001, for the period from the Effective Date to the end of the immediately preceding fiscal year) (disregarding any consideration permitted by reason of this proviso) less (II) the aggregate amount of consideration paid in connection with Permitted Acquisitions in such preceding period;and
(h) investments made after loans or advances by a Subsidiary to the Effective Date in joint ventures and other business entities (in each case that are not Subsidiaries of the Borrower) that are engaged in the same line or lines of business as the Domestic Borrower and its Subsidiaries in an aggregate amount not to exceed $30,000,000;
(i) investments constituting a purchase of the Equity Interests not owned by the Borrower as of the Effective Date of [Caterpillar joint venture] for aggregate consideration not to exceed $15,000,000;
(j) loans to employees of the Borrower and the Subsidiaries in their capacity as such, in an aggregate principal amount not to exceed $1,000,000 at any time outstanding;
(k) Hedging Agreements permitted under Section 6.07; and
(l) (i) non-recourse loans to employees the proceeds of which shall be used to purchase common stock of the Borrower and (ii) loans to management shareholders the proceeds of which shall be used to purchase common stock of the Borrower, provided that all loans outstanding the resulting Indebtedness has no priority in right of payment over any Indebtedness hereunder or under this clause (l) shall not exceed $4,000,000 in the aggregate at any time outstandingDesignated Swap Agreement.
Appears in 1 contract
Investments, Loans, Advances. Guarantees and -------------------------------------------- Acquisitions. The Borrower will not, and will not permit any of its ------------- Subsidiaries Subsidiary to, ------------ purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly wholly-owned Subsidiary prior to such mergermerger or consolidation) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except:
(a) pursuant to the Reorganization;
(b) Permitted Investments;
(bc) investments existing on the date hereof and set forth on Schedule 6.046.04(c);
(cd) investments after the Effective Date by the Borrower and its the Subsidiaries in Equity Interests in their respective Subsidiaries; , provided -------- that (i) any such -------- Equity Interests held by a Loan Party shall be pledged pursuant to the Pledge Collateral Agreement (subject to the limitations applicable to common stock set forth in clause (b) of a Foreign Subsidiary 138 referred to in Section 5.12the definition of the term "Collateral and Guarantee Requirement") and (ii) the aggregate amount of such 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 Parties, pursuant to clauses (including all such investmentse) and (f) below, loans, advances and Guarantees existing on the Effective Date) shall not exceed (x) $25,000,000 at 2,000,000 during fiscal year 2003 and (y) $4,000,000 during any time outstandingfiscal year thereafter;
(de) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary; Subsidiary (other than trade credits that constitute current accounts payable incurred in the ordinary course of business), 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 Collateral Agreement and (ii) the aggregate amount of such loans and advances made after the Effective Date by Loan Parties to Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (cd) above;
(ef) Guarantees constituting Indebtedness permitted by Section 6.01; , provided that (i) a Subsidiary shall not Guarantee any Subordinated -------- Financing unless (A) such Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Financing is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Financing and (C) such Guarantee of the Subordinated Financing provides for the release and termination thereof, without action by any party, upon such Subsidiary ceasing to be a subsidiary of the Borrower (including as a result of a sale or disposition pursuant to the Pledge Agreement), and (ii) the aggregate principal amount of Indebtedness of -------- Subsidiaries that are not Loan Parties that is Guaranteed after the Effective Date by any Loan Party shall be subject to the limitation set forth in clause (cd) above;
(fg) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) Permitted Acquisitions; provided that (i) the consideration for -------- each Permitted Acquisition shall consist solely of cash, shares of common stock of the Borrower, Indebtedness permitted pursuant to clause (xii) of Section 6.01(a), the assumption of Indebtedness of the acquired Person or encumbering the acquired assets, Indebtedness referred to in clause (viii) of Section 6.01(a) or a combination thereof and (ii) the sum of the principal amount of all Indebtedness so assumed or otherwise resulting from Permitted Acquisitions (including Indebtedness referred to in clauses (viii) and (xii) of Section 6.01(a)) plus the cash consideration paid in connection with Permitted Acquisitions as consideration for Permitted Acquisitions shall not exceed, during any fiscal year of the Borrower, the sum of $50,000,000 plus (i) the Net Proceeds of any Acquisition Equity Financing received during such fiscal year, (ii) commencing with the fiscal year ending on or about September 30, 2001, the amount of Excess Cash Flow for the immediately preceding fiscal year that (A) is not required to be applied to make prepayments of Loans pursuant to Section 2.11(d) and (B) has not previously been applied to Permitted ECF Uses and (iii) the Net Proceeds received during such fiscal year from the sale of a non-strategic asset or division identified to the Administrative Agent prior to the date hereof; provided that, commencing with the fiscal year ending September -------- 30, 2001, the amount of allowed consideration for Permitted Acquisitions set forth above in respect of any fiscal year shall be increased by 100% of the excess, if any of (I) the amount of such consideration allowed pursuant to this paragraph for the immediately preceding fiscal year (or, in the case of the fiscal year ending September 27, 2001, for the period from the Effective Date to the end of the immediately preceding fiscal year) (disregarding any consideration permitted by reason of this proviso) less (II) the aggregate amount of consideration paid in connection with Permitted Acquisitions in such preceding period;and
(h) investments made after the Effective Date in joint ventures payroll, travel and other business entities (in each case that are not Subsidiaries of the Borrower) that are engaged in the same line or lines of business as the Borrower and its Subsidiaries in an aggregate amount not to exceed $30,000,000;
(i) investments constituting a purchase of the Equity Interests not owned by the Borrower as of the Effective Date of [Caterpillar joint venture] for aggregate consideration not to exceed $15,000,000;
(j) loans similar advances to employees of the Borrower and the Subsidiaries in their capacity as such, in an aggregate principal amount or any Subsidiary not to exceed $1,000,000 at any time outstanding;
(k) Hedging Agreements permitted under Section 6.07; and
(l) (i) non-recourse loans to employees the proceeds of which shall be used to purchase common stock of the Borrower and (ii) loans to management shareholders the proceeds of which shall be used to purchase common stock of the Borrower, provided that all loans outstanding under this clause (l) shall not exceed $4,000,000 in the aggregate 250,000 at any time outstanding.
Appears in 1 contract
Investments, Loans, Advances. Guarantees and -------------------------------------------- Acquisitions. The Borrower Each of Intermediate Holdings (for so long as it is a Loan Party) ------------ and the Borrowers will not, and the Borrowers 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 or advances to, Guarantee any obligations of, or make or permit to exist 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;
(b) investments existing on the date hereof and set forth on Schedule 6.04;
(c) investments by Intermediate Holdings, the Borrower Borrowers and its the Subsidiaries in Equity Interests in their respective Subsidiaries; subsidiaries, provided -------- that (i) any such -------- Equity Interests held by Intermediate Holdings, either Borrower or a Subsidiary Loan Party shall shall, to the extent required by the Collateral and Guarantee Requirement, be pledged pursuant to the applicable Pledge Agreement (subject to the limitations applicable to common stock of a or Foreign Subsidiary 138 referred to in Section 5.12) Security Agreement and (ii) the aggregate amount of investments made after the Effective Date by Core Loan Parties in, and loans and advances outstanding at any time by Core Loan Parties to, and Guarantees outstanding at any time by Core Loan Parties of Indebtedness of, Subsidiaries that are not Core Loan Parties (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 150,000,000 at any time outstanding;
(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) above;
(e) Guarantees constituting Indebtedness permitted by Section 6.01; provided that (i) a Subsidiary shall not Guarantee any Subordinated -------- Financing unless (A) such Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Financing is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Financing and (C) such Guarantee of the Subordinated Financing provides for the release and termination thereof, without action by any party, upon such Subsidiary ceasing to be a subsidiary of the Borrower (including as a result of a sale or disposition pursuant to the Pledge Agreement), 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) above;
(f) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) Permitted Acquisitions; provided that (i) the consideration for -------- each Permitted Acquisition shall consist solely of cash, shares of common stock of the Borrower, Indebtedness permitted pursuant to clause (xii) of Section 6.01(a), the assumption of Indebtedness of the acquired Person or encumbering the acquired assets, Indebtedness referred to in clause (viii) of Section 6.01(a) or a combination thereof and (ii) the sum of the principal amount of all Indebtedness so assumed or otherwise resulting from Permitted Acquisitions (including Indebtedness referred to in clauses (viii) and (xii) of Section 6.01(a)) plus the cash consideration paid in connection with Permitted Acquisitions as consideration for Permitted Acquisitions shall not exceed, during any fiscal year of the Borrower, the sum of $50,000,000 plus (i) the Net Proceeds of any Acquisition Equity Financing received during such fiscal year, (ii) commencing with the fiscal year ending on or about September 30, 2001, the amount of Excess Cash Flow for the immediately preceding fiscal year that (A) is not required to be applied to make prepayments of Loans pursuant to Section 2.11(d) and (B) has not previously been applied to Permitted ECF Uses and (iii) the Net Proceeds received during such fiscal year from the sale of a non-strategic asset or division identified to the Administrative Agent prior to the date hereof; provided that, commencing with the fiscal year ending September -------- 30, 2001, the amount of allowed consideration for Permitted Acquisitions set forth above in respect of any fiscal year shall be increased by 100% of the excess, if any of (I) the amount of such consideration allowed pursuant to this paragraph for the immediately preceding fiscal year (or, in the case of the fiscal year ending September 27, 2001, for the period from the Effective Date to the end of the immediately preceding fiscal year) (disregarding any consideration permitted by reason of this proviso) less (II) the aggregate amount of consideration paid in connection with Permitted Acquisitions in such preceding period;
(h) investments made after the Effective Date in joint ventures and other business entities (in each case that are not Subsidiaries of the Borrower) that are engaged in the same line or lines of business as the Borrower and its Subsidiaries in an aggregate amount not to exceed $30,000,000;
(i) investments constituting a purchase of the Equity Interests not owned by the Borrower as of the Effective Date of [Caterpillar joint venture] for aggregate consideration not to exceed $15,000,000;
(j) loans to employees of the Borrower and the Subsidiaries in their capacity as such, in an aggregate principal amount not to exceed $1,000,000 at any time outstanding;
(k) Hedging Agreements permitted under Section 6.07; and
(l) (i) non-recourse loans to employees the proceeds of which shall be used to purchase common stock of the Borrower and (ii) loans to management shareholders the proceeds of which shall be used to purchase common stock of the Borrower, provided that all loans outstanding under this clause (l) shall not exceed $4,000,000 in the aggregate at any time outstanding.
Appears in 1 contract
Investments, Loans, Advances. Guarantees and -------------------------------------------- Acquisitions; ---------------------------------------------------------- Asset Sales. -----------
(a) The Borrower will not, and nor will not it permit any of its ------------- Subsidiaries 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 or in, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except:
(ai) Permitted Investments;
(b) investments existing on the date hereof and set forth on Schedule 6.04;
(cii) investments by the Borrower and its Subsidiaries in Equity Interests in their respective the Subsidiaries; provided that (i) any such -------- Equity Interests held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to common stock of a Foreign Subsidiary 138 referred to in Section 5.12) and (ii) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, and Guarantees by Loan Parties of Indebtedness of, Subsidiaries that are not Loan Parties (including all such investments, loans, advances and Guarantees existing on the Effective Date) shall not exceed $25,000,000 at any time outstanding;
(diii) loans or advances (A) made by the Borrower to any Subsidiary and (B) made by any Subsidiary to the Borrower or any other SubsidiaryBorrower; provided that --------
(i) any all such -------- loans and advances made by a Loan Party shall be evidenced by a promissory note notes pledged pursuant to the Borrower 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 subordinated to the limitation set forth Obligations as provided in clause (c) abovethe Subordination Agreement;
(eiv) Guarantees constituting Indebtedness permitted by Section 6.01; provided that (i) a Subsidiary shall not Guarantee any Subordinated -------- Financing unless (A) such Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee Borrower of obligations of the Subordinated Financing is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Financing and Subsidiaries; and
(Cv) such Guarantee of the Subordinated Financing provides for the release and termination thereof, without action investments by any party, upon such Subsidiary ceasing to be a subsidiary of the Borrower (including as a result of a sale or disposition pursuant to and the Pledge Agreement), 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) above;
(f) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business.
(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 Permitted Investments, in each case in the ordinary course of business;
(giii) Permitted Acquisitions; provided that (i) sales, transfers and dispositions by the consideration for -------- each Permitted Acquisition shall consist solely of cash, shares of common stock of the Borrower, Indebtedness permitted pursuant to clause (xii) of Section 6.01(a), the assumption of Indebtedness of the acquired Person or encumbering the acquired assets, Indebtedness referred to in clause (viii) of Section 6.01(a) Borrower or a combination thereof Subsidiary to the Borrower or a Subsidiary; and
(iv) other sales and dispositions by the Borrower and the Subsidiaries of assets (iiother than Equity Interests in any Subsidiary) with a fair market value not exceeding, in the sum of the principal amount of all Indebtedness so assumed or otherwise resulting from Permitted Acquisitions (including Indebtedness referred to in clauses (viii) and (xii) of Section 6.01(a)) plus the cash consideration paid in connection with Permitted Acquisitions as consideration for Permitted Acquisitions shall not exceedaggregate, $1,000,000 during any fiscal year of the Borrower; provided that all sales, the sum of $50,000,000 plus transfers, leases and other dispositions permitted -------- hereby (i) the Net Proceeds of any Acquisition Equity Financing received during such fiscal year, (ii) commencing with the fiscal year ending on or about September 30, 2001, the amount of Excess Cash Flow for the immediately preceding fiscal year that (A) is not required to be applied to make prepayments of Loans other than pursuant to Section 2.11(d) and (B) has not previously been applied to Permitted ECF Uses and clause (iii) the Net Proceeds received during such fiscal year from the sale of a non-strategic asset or division identified to the Administrative Agent prior to the date hereof; provided that, commencing with the fiscal year ending September -------- 30, 2001, the amount of allowed consideration for Permitted Acquisitions set forth above in respect of any fiscal year above) shall be increased by 100% of the excess, if any of (I) the amount of such consideration allowed pursuant to this paragraph made for the immediately preceding fiscal year (or, in the case of the fiscal year ending September 27, 2001, fair value ------------ and solely for the period from the Effective Date to the end of the immediately preceding fiscal year) (disregarding any consideration permitted by reason of this proviso) less (II) the aggregate amount of consideration paid in connection with Permitted Acquisitions in such preceding period;
(h) investments made after the Effective Date in joint ventures and other business entities (in each case that are not Subsidiaries of the Borrower) that are engaged in the same line or lines of business as the Borrower and its Subsidiaries in an aggregate amount not to exceed $30,000,000;
(i) investments constituting a purchase of the Equity Interests not owned by the Borrower as of the Effective Date of [Caterpillar joint venture] for aggregate consideration not to exceed $15,000,000;
(j) loans to employees of the Borrower and the Subsidiaries in their capacity as such, in an aggregate principal amount not to exceed $1,000,000 at any time outstanding;
(k) Hedging Agreements permitted under Section 6.07; and
(l) (i) non-recourse loans to employees the proceeds of which shall be used to purchase common stock of the Borrower and (ii) loans to management shareholders the proceeds of which shall be used to purchase common stock of the Borrower, provided that all loans outstanding under this clause (l) shall not exceed $4,000,000 in the aggregate at any time outstandingcash consideration.
Appears in 1 contract
Investments, Loans, Advances. Guarantees and -------------------------------------------- Acquisitions. The Borrower will not, and will not permit any of its ------------- Subsidiaries Subsidiary to, ------------- purchase, hold or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly wholly-owned Subsidiary prior to such mergermerger or consolidation) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except:
(a) pursuant to the Reorganization;
(b) Permitted Investments;
(bc) investments existing on the date hereof and set forth on Schedule 6.046.04(c);
(cd) investments after the Effective Date by the Borrower and its the Subsidiaries in Equity Interests in their respective Subsidiaries; , provided -------- that (i) any such -------- Equity Interests held by a Loan Party shall be pledged pursuant to the Pledge Collateral Agreement (subject to the limitations applicable to common stock set forth in clause (b) of a Foreign Subsidiary 138 referred to in Section 5.12the definition of the term "Collateral and Guarantee Requirement") and (ii) the aggregate amount of such 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 Parties, pursuant to clauses (including all such investmentse) and (f) below, loans, advances and Guarantees existing on the Effective Date) shall not exceed (x) $25,000,000 at 2,000,000 during fiscal year 2003 and (y) $4,000,000 during any time outstandingfiscal year thereafter;
(de) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary; Subsidiary (other than trade credits that constitute current accounts payable incurred in the ordinary course of business), provided that --------
(i) any such loans and advances -------- made after the Effective Date by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Pledge Collateral Agreement and (ii) the aggregate 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 (cd) above;
(ef) Guarantees constituting Indebtedness permitted by Section 6.01; , provided that (i) a Subsidiary shall not Guarantee any Subordinated -------- Financing unless (A) such Subsidiary also has Guaranteed the Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the Subordinated Financing is subordinated to such Guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Financing and (C) such Guarantee of the Subordinated Financing provides for the release and termination thereof, without action by any party, upon such Subsidiary ceasing to be a subsidiary of the Borrower (including as a result of a sale or disposition pursuant to the Pledge Agreement), and (ii) the aggregate principal amount of Indebtedness of -------- Subsidiaries that are not Loan Parties that is Guaranteed after the Effective Date by any Loan Party shall be subject to the limitation set forth in clause (cd) above;
(fg) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(g) Permitted Acquisitions; provided that (i) the consideration for -------- each Permitted Acquisition shall consist solely of cash, shares of common stock of the Borrower, Indebtedness permitted pursuant to clause (xii) of Section 6.01(a), the assumption of Indebtedness of the acquired Person or encumbering the acquired assets, Indebtedness referred to in clause (viii) of Section 6.01(a) or a combination thereof and (ii) the sum of the principal amount of all Indebtedness so assumed or otherwise resulting from Permitted Acquisitions (including Indebtedness referred to in clauses (viii) and (xii) of Section 6.01(a)) plus the cash consideration paid in connection with Permitted Acquisitions as consideration for Permitted Acquisitions shall not exceed, during any fiscal year of the Borrower, the sum of $50,000,000 plus (i) the Net Proceeds of any Acquisition Equity Financing received during such fiscal year, (ii) commencing with the fiscal year ending on or about September 30, 2001, the amount of Excess Cash Flow for the immediately preceding fiscal year that (A) is not required to be applied to make prepayments of Loans pursuant to Section 2.11(d) and (B) has not previously been applied to Permitted ECF Uses and (iii) the Net Proceeds received during such fiscal year from the sale of a non-strategic asset or division identified to the Administrative Agent prior to the date hereof; provided that, commencing with the fiscal year ending September -------- 30, 2001, the amount of allowed consideration for Permitted Acquisitions set forth above in respect of any fiscal year shall be increased by 100% of the excess, if any of (I) the amount of such consideration allowed pursuant to this paragraph for the immediately preceding fiscal year (or, in the case of the fiscal year ending September 27, 2001, for the period from the Effective Date to the end of the immediately preceding fiscal year) (disregarding any consideration permitted by reason of this proviso) less (II) the aggregate amount of consideration paid in connection with Permitted Acquisitions in such preceding period;and
(h) investments made after the Effective Date in joint ventures payroll, travel and other business entities (in each case that are not Subsidiaries of the Borrower) that are engaged in the same line or lines of business as the Borrower and its Subsidiaries in an aggregate amount not to exceed $30,000,000;
(i) investments constituting a purchase of the Equity Interests not owned by the Borrower as of the Effective Date of [Caterpillar joint venture] for aggregate consideration not to exceed $15,000,000;
(j) loans similar advances to employees of the Borrower and the Subsidiaries in their capacity as such, in an aggregate principal amount or any Subsidiary not to exceed $1,000,000 at any time outstanding;
(k) Hedging Agreements permitted under Section 6.07; and
(l) (i) non-recourse loans to employees the proceeds of which shall be used to purchase common stock of the Borrower and (ii) loans to management shareholders the proceeds of which shall be used to purchase common stock of the Borrower, provided that all loans outstanding under this clause (l) shall not exceed $4,000,000 in the aggregate 250,000 at any time outstanding.
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