Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a “Investment”), any other Person, except the following (collectively, “Permitted Investments”): (1) the Transactions (including payment of the purchase consideration under the Merger Agreement); (2) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 million in an aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made); (3) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom; (4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions; (5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);
Appears in 6 contracts
Samples: Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC)
Investments, Loans and Advances. Purchase, hold (i) Purchase or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofof any other person, (ii) make or permit to exist any loans or advances to or Guarantees of the obligations ofIndebtedness of any other person (other than in respect of intercompany liabilities incurred in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries incurred in the ordinary course of business), or make (iii) purchase or permit to exist any investment otherwise acquire, in one transaction or any other interest in a series of related transactions, (eachx) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, a line of business or division of such person (each of the foregoing, an “Investment”), except:
(a) the ADT Transactions;
(i) Investments by the Borrower or any other PersonSubsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary of Indebtedness otherwise permitted hereunder of the Borrower or any Subsidiary; provided, except that as at any date of determination, the following aggregate outstanding amount (collectivelyvalued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) of (A) Investments made after the Closing Date by the Loan Parties pursuant to subclause (i) in Subsidiaries that are not Subsidiary Loan Parties, “Permitted Investments”):
plus (B) net outstanding intercompany loans made after the Closing Date by the Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (ii), plus (C) outstanding Guarantees by the Loan Parties of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (iii) (excluding for purposes of the calculation in this proviso any Investment made at a time when, immediately after giving effect thereto, the Net Total Leverage Ratio on a Pro Forma Basis would not exceed 2.10 to 1.00, which Investment shall be permitted under this Section 6.04(b) without regard to such calculation), shall not exceed the sum of (X) the greater of (1) $150,000,000 and (2) 0.05 times the Transactions EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period plus (Y) an amount equal to any returns (including payment dividends, interest, distributions, returns of the purchase consideration under the Merger Agreement)principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the Disposition of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 million (i) in the ordinary course of business in an aggregate principal outstanding amount (valued at the time of the making thereof, and without giving effect to any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million 27,500,000 and (ii) 0.501.20% of Consolidated Total Assets as of the date end of the then most recently ended Test Period, (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Hedging Agreements entered into for non-speculative purposes;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals, replacements or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment is madeas in existence on the Closing Date or as otherwise permitted by this Section 6.04);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (o), (r), (s), (ee) and (ll);
(j) other Investments by the Borrower or any Subsidiary in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the sum of (X) the greater of $350,000,000 and 0.12 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, plus (Y) so long as no Default or Event of Default has occurred and is continuing, any portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(j)(Y) in a written notice of a Responsible Officer thereof, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied, and plus (Z) an amount equal to any returns (including dividends, interest, distributions, returns of capital or sale proceeds principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investments Investment pursuant to clause (X); provided, that if any Investment pursuant to this Section 6.04(j) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(j);
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Subsidiaries that are not Loan Parties and Guarantees by Subsidiaries that are not Loan Parties permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower or a Subsidiary as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of a person merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent such acquisition, merger or consolidation is permitted under this Section 6.04, (ii) in the case of any acquisition, merger or consolidation, in accordance with Section 6.05 and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capitalized Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of the Borrower, Holdings or any Parent Entity; provided, that the issuance of such Equity Interests are not included in any determination of the Cumulative Credit;
(r) Investments in the Equity Interests of one or more newly formed persons that are received in consideration of the contribution by Holdings, the Borrower or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided, that (i) the fair market value of such assets, determined in good faith by the Borrower, so contributed pursuant to this clause (r) shall not in the aggregate exceed $13,500,000 and (ii) in respect of each such contribution, a Responsible Officer of the Borrower shall certify, in a form to be agreed upon by the Borrower and the Administrative Agent (x) immediately after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (y) the fair market value (as determined in good faith by the Borrower) of the assets so contributed and (z) that the requirements of clause (i) of this proviso remain satisfied;
(s) Investments consisting of Restricted Payments permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;
(u) [reserved];
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to this Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(x) Investments by the Borrower and its Subsidiaries, including loans to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount (provided, that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Investments consisting of Securitization Assets or arising as a result of Permitted Securitization Financings;
(z) Investments consisting of the licensing or contribution of Intellectual Property pursuant to joint marketing or other arrangements with other persons;
(aa) to the extent constituting Investments, purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of Intellectual Property in each case in the ordinary course of business;
(bb) Investments received substantially contemporaneously in exchange for Equity Interests of the Borrower, Holdings or any Parent Entity; provided, that the issuance of such Equity Interests are not included in any determination of the Cumulative Credit;
(cc) Investments in joint ventures; provided that the aggregate outstanding amount (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) of Investments made after the Closing Date pursuant to this Section 6.04(cc) (excluding for purposes of the calculation in this proviso any Investment made at a time when, immediately after giving effect thereto, the Net Total Leverage Ratio on a Pro Forma Basis would not exceed 2.10 to 1.00, which Investment shall be permitted under this Section 6.04(cc) without regard to such calculation) shall not exceed the sum of (X) the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, plus (Y) an aggregate amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment; provided, that if any Investment pursuant to this Section 6.04(cc) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(cc);
(dd) Investments in Similar Businesses in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the sum of (X) the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period plus (Y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment; provided, that if any Investment pursuant to this Section 6.04(dd) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(dd);
(ee) Investments in any Unrestricted Subsidiaries after giving effect to the applicable Investments, in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the sum of (X) the greater of $75,000,000 and 0.025 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period plus (Y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment; provided, that if any Investment pursuant to this Section 6.04(ee) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(ee); and
(ff) Investments made pursuant to the Merger Agreement. The amount of Investments that may be made at any time pursuant to Section 6.04(b), 6.04(j) or 6.04(dd) (such Sections, the “Related Sections”) may, at the election of the Borrower, be increased by the amount of Investments that could be made at such time under the other Related Section; provided, that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section. Any Investment in any person other than the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Section 6.04 may be made through intermediate Investments in Subsidiaries that are not Loan Parties and such intermediate Investments shall be disregarded for purposes of determining the outstanding amount of Investments pursuant to any clause set forth above. The amount of any Investment made other than in the form of cash or cash equivalents shall be the fair market value thereof (as determined aboveby the Borrower in good faith) valued at the time such Investment was made);of the making thereof, and without giving effect to any subsequent write-downs or write-offs thereof.
Appears in 4 contracts
Samples: Amendment Agreement No. 8 (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a “Investment”), any other Person, except the following (collectively, “Permitted Investments”):
(1) the Transactions (including payment of the purchase consideration under the Merger Agreement);
(2) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 million in an aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), 6.04(5) may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);
Appears in 4 contracts
Samples: Revolving Credit Agreement (PET Acquisition LLC), Revolving Credit Agreement (PET Acquisition LLC), Revolving Credit Agreement (PET Acquisition LLC)
Investments, Loans and Advances. Purchase, hold (i) Purchase or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofof any other person, (ii) make or permit to exist any loans or advances to or Guarantees of the obligations ofIndebtedness of any other person (other than in respect of intercompany liabilities incurred in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries incurred in the ordinary course of business), or make (iii) purchase or permit to exist any investment otherwise acquire, in one transaction or any other interest in a series of related transactions, (eachx) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, a line of business or division of such person (each of the foregoing, an “Investment”), except:
(a) the ADT Transactions;
(i) Investments by the Borrower or any other PersonSubsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary of Indebtedness otherwise permitted hereunder of the Borrower or any Subsidiary; provided, except that as at any date of determination, the following aggregate outstanding amount (collectivelyvalued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) of (A) Investments made after the Closing Date by the Loan Parties pursuant to subclause (i) in Subsidiaries that are not Subsidiary Loan Parties, “Permitted Investments”):
plus (B) net outstanding intercompany loans made after the Closing Date by the Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (ii), plus (C) outstanding Guarantees by the Loan Parties of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (iii) (excluding for purposes of the calculation in this proviso any Investment made at a time when, immediately after giving effect thereto, the Net Total Leverage Ratio on a Pro Forma Basis would not exceed 3.15 to 1.00, which Investment shall be permitted under this Section 6.04(b) without regard to such calculation), shall not exceed the sum of (X) the greater of (1) $150,000,000 and (2) 0.05 times the Transactions EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period plus (Y) an amount equal to any returns (including payment dividends, interest, distributions, returns of the purchase consideration under the Merger Agreement)principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the Disposition of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 million (i) in the ordinary course of business in an aggregate principal outstanding amount (valued at the time of the making thereof, and without giving effect to any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million 27,500,000 and (ii) 0.501.20% of Consolidated Total Assets as of the date end of the then most recently ended Test Period, (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Hedging Agreements entered into for non-speculative purposes;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals, replacements or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment is madeas in existence on the Closing Date or as otherwise permitted by this Section 6.04);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (o), (r), (s), (ee) and (ll);
(j) other Investments by the Borrower or any Subsidiary in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the sum of (X) the greater of $350,000,000 and 0.12 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, plus (Y) so long as no Default or Event of Default has occurred and is continuing, any portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(j)(Y) which such election shall (unless such Investment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer thereof, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied, and plus (Z) an amount equal to any returns (including dividends, interest, distributions, returns of capital or sale proceeds principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investments Investment pursuant to clause (X); provided, that if any Investment pursuant to this Section 6.04(j) is made in any person that was not a Subsidiary on the date on which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was mademade but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(j);
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Subsidiaries that are not Loan Parties and Guarantees by Subsidiaries that are not Loan Parties permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower or a Subsidiary as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
Appears in 4 contracts
Samples: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) [reserved];
(i) Investments by the following Borrower or any Subsidiary in the Equity Interests of any Subsidiary; (collectivelyii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Borrower or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) the net amount outstanding in respect of intercompany loans made after the Closing Date by Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees by Loan Parties of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate amount equal to (x) the greater of (1) $500.0 million and (2) 4.5% of Consolidated Total Assets as of the Transactions end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b)); plus (y) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(b)(y); provided, further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(c) Permitted Investments and Investments that were Permitted Investments when made (including payment of in connection with the purchase consideration under the Merger AgreementArbitrage Programs);
(2d) Investments arising out of the receipt by the Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 50.0 million as of the end of the fiscal quarter immediately prior to the date of such loan or advance for which financial statements have been delivered pursuant to Section 5.04 in an the aggregate principal amount at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any direct or indirect parent of Holdings) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity, and advances to real estate agents in the ordinary course of business;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to any increase as required by the terms of any such Investment as in existence on the Closing Date);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), (u) and (ee);
(j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4i) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 550.0 million and (ii) 0.505.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 (plus, without duplication for such amounts included in the calculation of the Cumulative Credit, any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (j)) plus (ii) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(j)(ii); provided that if any Investment pursuant to this clause (j) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, then (so long as such Investment also complies with clause (k) below if such person becomes a Subsidiary as a result of such Investment) such Investment shall thereafter be deemed to have been made pursuant to clause (b) above and shall cease to have been made pursuant to this clause (j) for so long as such person continues to be a Subsidiary of the Borrower;
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Subsidiaries that are not Loan Parties and Guarantees by Subsidiaries that are not Loan Parties permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, settlement of delinquent accounts against, and settlement, compromise or resolution of litigation, arbitration or other disputes with or judgments against, any other person that is not an Affiliate of the Borrower, or Investments acquired as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of an entity merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) in the case of any acquisition, merger, consolidation or amalgamation, permitted under Section 6.05 and (ii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of Holdings (or any Parent Entity);
(r) subject to the limitations of the last paragraph of Section 6.05, Investments in the Equity Interests of one or more newly formed persons that are received as consideration for the contribution by Holdings, the Borrower or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided, that (i) the fair market value of such assets, determined in good faith by the Borrower on an arms’-length basis, so contributed pursuant to this paragraph (r) shall not in the aggregate exceed $50.0 million and (ii) in respect of each such contribution, a Responsible Officer of the Borrower shall certify, in a form to be agreed upon by the Borrower and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing, (y) the fair market value (as determined in good faith by the Borrower) of the assets so contributed and (z) that the requirements of paragraph (i) of this proviso remain satisfied;
(s) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) Investments in Subsidiaries that are not Loan Parties not to exceed the greater of $220.0 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment is made, for which financial statements have been delivered pursuant to Section 5.04 (plus an amount equal to any returns return of capital or sale proceeds actually received in respect of any such Investments theretofore made pursuant to this paragraph (which such amount shall not exceed u) in the amount aggregate, as valued at the fair market value (as determined in good faith by the Borrower) of such Investment (as determined above) at the time such Investment was is made;
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(x) Investments by Borrower and its Subsidiaries, including loans and advances to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount (provided that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Investments arising as a result of Permitted Securitization Financings;
(z) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(aa) purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business, to the extent such purchases and acquisitions constitute Investments;
(bb) Investments received substantially contemporaneously in exchange for Equity Interests of Holdings or any Parent Entity; provided that such Investments are not included in any determination of the Cumulative Credit;
(cc) Investments in joint ventures not in excess of the greater of $220.0 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 in the aggregate (plus an amount equal to any return of capital actually received in respect of Investments theretofore made pursuant to this paragraph (cc) in the aggregate); provided that if any Investment pursuant to this clause (cc) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, then (so long as such Investment also complies with clause (k) above if such person becomes a Subsidiary as a result of such Investment) such Investment shall thereafter be deemed to have been made pursuant to clause (b) above and shall cease to have been made pursuant to this clause (cc) for so long as such person continues to be a Subsidiary of the Borrower;
(dd) [reserved];
(ee) any franchise development advances or notes and other loans to franchisees in an aggregate amount not to exceed $75.0 million in any fiscal year; and
(ff) advances or loans to relocating employees of a customer in the relocation services business of the Borrower or any Subsidiary made in the ordinary course of business. The amount of Investments that may be made at any time pursuant to Section 6.04(b) or 6.04(j) (such Sections, the “Related Sections”) may, at the election of the Borrower, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section. For purposes of covenant compliance with this Section 6.04, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of such Investment.
Appears in 3 contracts
Samples: Term Loan Agreement (Realogy Group LLC), Term Loan Agreement (Realogy Group LLC), Credit Agreement (Realogy Holdings Corp.)
Investments, Loans and Advances. Purchase, hold (i) Purchase or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofof any other person, (ii) make or permit to exist any loans or advances to or Guarantees of the obligations ofIndebtedness of any other person (other than loans or advances in respect of (A) intercompany current liabilities incurred in connection with the cash management operations of the Borrower and the Subsidiaries and (B) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business or consistent with industry practices), or make (iii) purchase or permit to exist any investment otherwise acquire, in one transaction or any other interest in a series of related transactions, (eachx) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, a line of business or division of such person (each of the foregoing, an “Investment”), except:
(a) the Transactions;
(i) Investments by the Borrower or any other PersonSubsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary of Indebtedness otherwise permitted hereunder of the Borrower or any Subsidiary; provided, except that as at any date of determination, the following aggregate outstanding amount of (collectivelyA) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to subclause (i) in Subsidiaries that are not Subsidiary Loan Parties, “Permitted Investments”):
plus (B) net outstanding intercompany loans made after the Closing Date by the Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (ii), plus (C) outstanding Guarantees by the Loan Parties of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (iii) shall not exceed the sum of (X) the greater of (1) $30,000,000 and (2) 4.25% of the Transactions Consolidated Total Assets as at the end of the then most recently ended Test Period plus (Y) an amount equal to any returns (including payment dividends, interest, distributions, returns of the purchase consideration under the Merger Agreement)principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the Disposition of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed the greater of $15.0 million 5,000,000 and 1.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after thereof), (ii) in respect of payroll payments and expenses in the date made)ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(3f) Investments (i) accounts receivable, security deposits and prepayments arising, trade credit granted and Customer Development Agreements (and Customer Notes issued thereunder) (x) entered into in the ordinary course of business or (y) limited to an amount not to exceed $5,000,000 outstanding at any one time and (ii) any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the Available Amount extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Hedging Agreements entered into for non-speculative purposes;
(h) Investments existing on, or contractually committed as of, the Closing Date consisting of intercompany loans or as set forth on Schedule 6.04 to the Original Credit Agreement and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (o), (r), (s), (ee) and (ll);
(j) other Investments by the Borrower or any Subsidiary in an aggregate outstanding amount (valued at the time of the date such Investments are made; provided that making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the sum of (X) the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, plus (Y) so long as no Event of Default has shall have occurred and be continuing, any portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(j)(Y) which such election shall (unless such Investment is continuing made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer thereof, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower election and the Restricted Subsidiaries amount thereof elected to be so applied, and plus (including intercompany Indebtedness); provided that the sum of (aZ) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns (including dividends, interest, distributions, returns of capital or sale proceeds principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investments Investment pursuant to clause (X); provided, that if any Investment pursuant to this Section 6.04(j) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(j);
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Subsidiaries that are not Loan Parties and Guarantees by Subsidiaries that are not Loan Parties permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower or a Subsidiary as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of a person merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent such acquisition, merger or consolidation is permitted under this Section 6.04, (ii) in the case of any acquisition, merger or consolidation, in accordance with Section 6.05 and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capitalized Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of the Borrower, Holdings or any Parent Entity; provided, that the issuance of such Equity Interests are not included in any determination of the Cumulative Credit;
(r) [Reserved];
(s) Investments consisting of Restricted Payments permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;
(u) Investments in Subsidiaries that are not Loan Parties after giving effect to the applicable Investments in an aggregate outstanding amount shall (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) not to exceed the sum of (x) the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period in the aggregate plus (y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of Investments theretofore made pursuant to this Section 6.04(u);
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to this Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(x) Investments by the Borrower and its Subsidiaries, including loans to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount (provided, that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Investments consisting of Receivable Assets or arising as a result of Permitted Receivables Financings;
(z) Investments consisting of the licensing or contribution of Intellectual Property pursuant to joint marketing or other arrangements with other persons;
(aa) to the extent constituting Investments, purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of Intellectual Property in each case in the ordinary course of business;
(bb) Investments received substantially contemporaneously in exchange for Equity Interests of the Borrower, Holdings or any Parent Entity; provided, that the issuance of such Equity Interests are not included in any determination of the Cumulative Credit;
(cc) Guarantees of Indebtedness in respect of ordinary course customer financing lines of credit;
(dd) Investments in joint ventures in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the sum of (X) the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period plus (Y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment; provided, that if any Investment pursuant to this clause (dd) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(dd); and
(ee) Investments in Similar Businesses in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the sum of (X) the greater of $30,000,000 and 5% of the Consolidated Total Assets as at the end of the then most recently ended Test Period plus (Y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment; provided, that if any Investment pursuant to this clause (ee) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(ee). The amount of Investments that may be made at any time pursuant to Section 6.04(b), 6.04(j) or 6.04(ee) (such Sections, the “Related Sections”) may, at the election of the Borrower, be increased by the amount of Investments that could be made at such time under the other Related Section; provided, that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section. Any Investment in any person other than the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Section 6.04 may be made through intermediate Investments in Subsidiaries that are not Loan Parties and such intermediate Investments shall be disregarded for purposes of determining the outstanding amount of Investments pursuant to any clause set forth above. The amount of any Investment made other than in the form of cash or cash equivalents shall be the fair market value thereof (as determined aboveby the Borrower in good faith) valued at the time such Investment was made);of the making thereof, and without giving effect to any subsequent write-downs or write-offs thereof.
Appears in 3 contracts
Samples: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.), Incremental Assumption and Amendment Agreement (PlayAGS, Inc.), Incremental Assumption and Amendment Agreement (PlayAGS, Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation merger or amalgamation with a Person that is not a Wholly Owned Restricted Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Restricted Subsidiaries, which cash management operations shall not extend to any Person that is not a Restricted Subsidiary) to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), in any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) Investments after the Transactions (including payment of Closing Date by the purchase consideration under Borrower and any Subsidiary Loan Party in the Merger Agreement)Borrower or any Subsidiary Loan Party;
(2b) Permitted Investments and Investments that were Permitted Investments when made;
(c) (i) so long as no Default or Event of Default has occurred and is continuing (both before and immediately after giving effect to the applicable loans or advances), loans and advances to officersemployees of the Borrower, directorsany of its Restricted Subsidiaries or, to the extent such employees or consultants are providing services rendered on behalf of any Parent Entity, the Borrower or any Restricted Subsidiary Loan Party, any Parent Company in the ordinary course of business not to exceed $15.0 U.S.$5.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after thereof) and (ii) advances of payroll payments and expenses to employees of the date made)Borrower, any of its Restricted Subsidiaries or, to the extent such employees are providing services on behalf of the Borrower or any Subsidiary Loan Party, any Parent Company in the ordinary course of business;
(3d) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(e) Swap Agreements permitted under Section 6.13 and Section 6.01;
(f) Investments in an amount not existing on the Closing Date and set forth on Schedule 6.04;
(g) so long as immediately before and after giving effect to exceed the Available Amount as of the date such Investments are made; provided that Investment, no Default or Event of Default has occurred and is continuing, other Investments by the Borrower or any of its Restricted Subsidiaries in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed U.S.$10.0 million;
(h) Investments (including, but not limited to, Investments in Equity Interests, intercompany loans, and Guarantees of Indebtedness otherwise expressly permitted hereunder) after the Closing Date by Restricted Subsidiaries that are not Subsidiary Loan Parties in the Borrower or any Subsidiary Loan Party;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business;
(j) Guarantees by the Borrower or any of its Restricted Subsidiaries of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by any Restricted Subsidiary in the ordinary course of business;
(k) Investments in (i) the Xxxxxx Joint Venture in an aggregate amount not to exceed U.S.$350.0 million and (ii) the Bison Joint Venture in an aggregate amount not to exceed U.S. $50.0 million; provided that both immediately before and after giving effect thereto: (i) no Default or Event of Default shall have occurred and be continuing immediately prior or would result therefrom and (ii) the Borrower and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to making such Investment with the Financial Performance Covenants, each recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Restricted Subsidiaries;
(l) Investments in the Ohio Joint Ventures constituting (i) the purchase of Equity Interests in the Ohio Joint Ventures owned on the Closing Date, including any options to acquire future Equity Interests, and (ii) the exercise of any options acquired pursuant to clause (i) hereof; provided, in each case, that both immediately before and after giving effect thereto: (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) the Borrower and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such Investment with the Financial Performance Covenants, each recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Restricted Subsidiaries;
(m) Investments in the Ohio Joint Ventures constituting of (i) purchases of additional Equity Interests in the Ohio Joint Ventures from holders of Equity Interests in the Ohio Joint Ventures (other than Summit Midstream Partners Holdings, LLC) and (ii) investments in response to capital calls in respect of the Ohio Joint Ventures that maintain the Borrower’s then existing ownership percentage therein; provided, in each case, that immediately before such Investment and after giving effect thereto, (A) the Borrower and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis, with the Financial Performance Covenants, each recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Restricted Subsidiaries and (B) no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(4n) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;Summit Permian Finance Co constituting the IRBs; and
(5o) intercompany Investments among in the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of Double E Joint Venture constituting (i) $25.0 million the contribution to the Double E Joint Venture on the Revolving Second Amendment Effective Date of the assets contemplated by the Double E Contribution Agreement and (ii) 0.50% additional Investments therein after the Revolving Second Amendment Effective Date; provided, in the case of Consolidated Total Assets sub-clause (ii), that immediately before such Investment and after giving effect thereto, (A) the Borrower and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis, with the Financial Performance Covenants, each recomputed as at the last day of the date any such Investment is made, plus an amount equal to any returns most recently ended fiscal quarter of capital the Borrower and its Restricted Subsidiaries and (B) no Default or sale proceeds actually received in respect Event of any such Investments (which such amount Default shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);have occurred and be continuing or would result therefrom.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (Summit Midstream Partners, LP), Term Loan Credit Agreement (Summit Midstream Partners, LP), Purchase Agreement (Summit Midstream Partners, LP)
Investments, Loans and Advances. Purchase, hold (i) Purchase or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofof any other person, (ii) make or permit to exist any loans or advances to or Guarantees of the obligations ofIndebtedness of any other person, or make (iii) purchase or permit to exist any investment otherwise acquire, in one transaction or any other interest in a series of related transactions, (eachx) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, a line of business or division of such person (each of the foregoing, an “Investment”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) to the Transactions (including payment of extent constituting Investments, the purchase consideration under the Merger Agreement)Enhabit Transactions;
(2b) Investments by the Borrower, any Guarantor or any Subsidiary in the Borrower, any Guarantor or any Subsidiary;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the Disposition of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 million (i) in the ordinary course of business in an aggregate principal outstanding amount (valued at the time of the making thereof, and without giving effect to any time outstanding (calculated without regard to write-downs or write-offs thereof) not to exceed $10,000,000, (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of the Borrower;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Hedging Agreements entered into for non-speculative purposes;
(h) Investments (not in Subsidiaries, which are provided in clause (b) above) existing on, or contractually committed as of, the Effective Date and set forth on Schedule 6.04 and any extensions, renewals, replacements or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Effective Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Effective Date or as otherwise permitted by this Section 6.04);
(3i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (n), (q), (r), (dd) and (jj);
(j) Investments by the Borrower or any Subsidiary in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed at the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that time made the sum of (aX) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million 45,250,000 and (ii) 0.5025.0% of LTM Adjusted Consolidated Total Assets EBITDA, plus (Y) so long as no Default or Event of Default shall have occurred and be continuing, any portion of the Available Amount on the date any of such Investment is madeelection that the Borrower elects to apply to this Section 6.04(j)(Y) in a written notice of a Responsible Officer thereof, which notice shall set forth calculations in reasonable detail of the Available Amount immediately prior to such election and the amount thereof elected to be so applied, and plus (Z) an amount equal to any returns (including dividends, interest, distributions, returns of capital or sale proceeds principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investments Investment (which such amount shall not exceed excluding any returns in excess of the amount of such originally invested) pursuant to clause (X) or (Y); provided, that if any Investment (as determined abovepursuant to this Section 6.04(j) at is made in any person that was not a Subsidiary on the time date on which such Investment was mademade but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the provisions thereof) and not in reliance on this Section 6.04(j);
(k) Investments constituting Permitted Acquisitions;
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower or a Subsidiary as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
Appears in 3 contracts
Samples: Credit Agreement (Enhabit, Inc.), Credit Agreement (Enhabit, Inc.), Credit Agreement (Encompass Health Corp)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Wholly-Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions 2008 Transactions;
(including payment i) Investments by the Borrower or any Subsidiary in the Equity Interests of the purchase Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary of Indebtedness otherwise permitted hereunder of the Borrower or any Subsidiary; provided, that (A) Investments made after the Closing Date by the Borrower or any Subsidiary Loan Party pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, and (B) intercompany loans made after the Closing Date by the Borrower or any Subsidiary Loan Party to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii) and (C) Guarantees after the Closing Date by the Borrower or any Subsidiary Loan Party of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii) shall, in each case, only be permitted to the extent that after giving effect to the incurrence of such Investment, intercompany loan or Guarantee, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be greater than 4.5 to 1.0;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under the Merger AgreementSection 6.05 (other than Section 6.05(h));
(2e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 25 million in an the aggregate principal amount at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings or any Parent Entity solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements that are not entered into for speculative purposes;
(h) Investments existing on, or contractually committed as of, the Closing Date consisting of intercompany loans or as set forth on Schedule 6.04 to the 2008 Credit Agreement and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this paragraph (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), (u) and (dd);
(j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4i) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 500 million and (ii) 0.504.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (j)) plus (ii) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(j)(ii), such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided that if any Investment pursuant to this paragraph (j) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to paragraph (b) above and shall cease to have been made pursuant to this paragraph (j) for so long as such person continues to be a Subsidiary of the Borrower;
(k) Investments constituting Permitted Business Acquisitions;
(l) Investments in a Similar Business in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the greater of $500 million and 4.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (l)); provided that if any Investment pursuant to this paragraph (l) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to paragraph (b) above and shall cease to have been made pursuant to this paragraph (l) for so long as such person continues to be a Subsidiary of the Borrower;
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of an entity merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent such acquisition, merger or consolidation was or is permitted under this Section 6.04 or Section 6.05 and (ii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of Borrower, Holdings or any Parent Entity;
(r) Investments in Unrestricted Subsidiaries in an aggregate amount outstanding not to exceed $250.0 million (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (r)), as valued at the fair market value (as determined in good faith by the Borrower) of such Investment at the time such Investment is made; provided that if any Investment pursuant to this paragraph (r) is made in any Unrestricted Subsidiary and such Unrestricted Subsidiary is redesignated a Subsidiary of the Borrower after such date, such redesignation shall increase the amount available pursuant to this clause (r) by an amount equal to the fair market value (as determined in good faith by the Borrower) of the Borrower’s Investments in such Subsidiary previously made in reliance on this clause (r) at the time of such redesignation;
(s) Investments consisting of Restricted Payments permitted by Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) Investments in Foreign Subsidiaries not to exceed $250 million (plus an amount equal to any returns return of capital or sale proceeds actually received in respect of any such Investments theretofore made pursuant to this paragraph (which such amount shall not exceed u)), as valued at the amount fair market value (as determined in good faith by the Borrower) of such Investment (as determined above) at the time such Investment was is made;
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(x) Investments by Borrower and its Subsidiaries, including loans and advances to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount (provided that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate paragraph of Section 6.06 for all purposes of this Agreement);
(y) Investments arising as a result of Permitted Receivables Financings;
(z) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(aa) purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business, to the extent such purchases and acquisitions constitute Investments;
(bb) Investments received substantially contemporaneously in exchange for Qualified Equity Interests of Holdings, the Borrower or any Parent Entity; provided that such Investments are not included in any determination of the Cumulative Credit;
(cc) any Investment in connection with the use of the Real Estate Revolver Facility Sublimit of the Revolving Facility for the account or benefit of the Real Estate Revolver Subsidiaries to the extent permitted hereunder (including the distribution of the proceeds of any Revolving Facility Loan and with respect to the issuance of or payments in connection with drawings under Letters of Credit), in each case to the extent the applicable Borrowing Request or Letter of Credit Application indicated that such Revolving Facility Loan or Letter of Credit was being drawn or issued, as applicable, under the Real Estate Revolver Facility Sublimit; (dd) any Investment (i) made pursuant to an Operations Management Agreement and (ii) in connection with the Post-Closing CMBS Transaction;
Appears in 3 contracts
Samples: Amendment Agreement (Caesars Entertainment Operating Company, Inc.), Amendment Agreement (CAESARS ENTERTAINMENT Corp), Amendment Agreement (CAESARS ENTERTAINMENT Corp)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) the following Closing Date Transactions;
(collectivelyi) Investments in the Equity Interests of Holdings, “Permitted Investments”):
the Borrower or any other Restricted Subsidiary, (ii) intercompany loans to the Borrower or any other Restricted Subsidiary and (iii) Guarantees of Indebtedness expressly permitted hereunder; provided that in the case of an Investment by the Borrower or any of the other Restricted Subsidiaries in a Restricted Subsidiary that is not a Loan Party, at the time such Investment is made, no Event of Default shall have occurred and be continuing; provided, further, that, at the time of the making of any such Investment (and after giving effect thereto), the sum of (A) outstanding Investments (valued at the time of the making thereof and without giving effect to any write downs or write offs thereof) made after the Closing Date in Restricted Subsidiaries that are not Loan Parties pursuant to clause (i) plus (B) outstanding intercompany loans made after the Closing Date to Subsidiaries that are not Loan Parties pursuant to clause (ii) plus (C) outstanding Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Loan Parties pursuant to clause (iii) shall not exceed an aggregate net amount equal to the greater of (1) the Transactions $60.0 million and (including payment 2) 4.00% of Consolidated Total Assets as of the purchase consideration under end of the Merger Agreement)fiscal quarter immediately prior to the date of such Investment for which Required Financial Statements have been delivered pursuant to Section 5.04; provided, further, that (x) intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of Holdings or any of its Subsidiaries and (y) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business consistent with past practice shall not be included in calculating the limitation in this paragraph (b) at any time;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any of the other Restricted Subsidiaries of non-cash consideration for the sale or other disposition of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, managers and employees or consultants of any Parent Entity or any of its Restricted Subsidiaries (i) not to exceed $15.0 million in the aggregate at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business or (iii) in connection with the purchase of Equity Interests of any Parent Entity solely to the extent that the amount of such loans and advances shall be contributed to Holdings or any of its Restricted Subsidiaries in cash as common equity;
(f) accounts receivable, security deposits and repayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any repayments and other credits to suppliers made in the ordinary course of business;
(g) Hedge Agreements permitted by Section 6.01(c);
(h) Investments existing on, or contractually committed as of, the First Restatement Effective Date and set forth on Schedule 6.04(h) and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investments existing or committed on the First Restatement Effective Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the First Restatement Effective Date);
(i) Investments resulting from pledges and deposits under the following clauses of Section 6.02: (a), (f), (g), (k), (q), (r) and (ee);
(j) other Investments in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed at the time of the making of such Investment (and after giving effect thereto) and together with all outstanding Investments pursuant to this Section 6.04(j)(i), the greater of (A) $75.0 million and (B) 4.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which Required Financial Statements have been delivered pursuant to Section 5.04 (plus any returns of capital actually received by the respective investor in respect of Investments theretofore made by it pursuant to this clause (j)(i));
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans among Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(n);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case, in the ordinary course of business and Investments acquired as a result of a foreclosure by the Borrower or any of the other Restricted Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary of the Borrower acquired after the First Restatement Effective Date or of an entity merged into, or consolidated or amalgamated with, the Borrower or any other Restricted Subsidiary after the First Restatement Effective Date, in each case, (i) to the extent permitted under this Section 6.04, (ii) in the case of any acquisition, merger, consolidation or amalgamation, in accordance with Section 6.05, and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;
(o) acquisitions of obligations of one or more directors, officers, managers or other employees of any Parent Entity, the Borrower or any other Restricted Subsidiary in connection with such director’s, officer’s, manager’s or employee’s acquisition of Equity Interests of any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the other Restricted Subsidiaries to such directors, officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees of operating leases (for the avoidance of doubt, excluding Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case, entered into by the Borrower or any of the other Restricted Subsidiaries in the ordinary course of business;
(q) Investments to exceed $15.0 million the extent that payment for such Investments is made with Equity Interests of any Parent Entity;
(r) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(s) Investments in an the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(t) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(u) advances in the form of a repayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or any of the other Restricted Subsidiaries;
(v) Investments, including loans and advances to any Parent Entity, so long as Borrower or any of the other Restricted Subsidiaries would otherwise be permitted to make a Restricted Payment in such amount; provided that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 for all purposes of this Agreement;
(w) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(x) purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business, to the extent such purchases and acquisitions constitute Investments;
(y) Investments received substantially contemporaneously in exchange for Equity Interests of any Parent Entity;
(z) Investments in (i) joint ventures and Unrestricted Subsidiaries, (ii) the Equity Interests of one or more newly formed persons that are received in consideration of the contribution by the Borrower or any of the other Restricted Subsidiaries of assets (including Equity Interests and cash) to such person or persons and (iii) Foreign Subsidiaries, in each case, valued at the fair market value of such Investment at the time such Investment is made, in the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (ix) $25.0 45.0 million and (iiy) 0.502.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which Required Financial Statements have been delivered pursuant to Section 5.04 (calculated without regard to write downs or write offs thereof); provided that if any Investment pursuant to this clause (z) is made in any person that is not a Restricted Subsidiary at the date of the making of such Investment and such person becomes a Restricted Subsidiary after such date pursuant to another Investment (including a Subsidiary Redesignation) the amount of which, when taken together with the amount of the prior Investment, would be permitted under another provision of this Section 6.04, any Investment in such person outstanding under this Section 6.04(z) shall thereafter be deemed to have been made pursuant to such other provision and shall cease to have been made pursuant to this clause (z) for so long as such person continues to be a Restricted Subsidiary;
(aa) Investments in assets useful in the business of the Borrower and any of its Subsidiaries made with the proceeds of any Reinvestment Deferred Amount or Below Threshold Asset Sale Proceeds (each as defined in the Term Loan Credit Agreement); provided, that if the underlying Asset Sale or Recovery Event was with respect to Holdings or a Subsidiary Loan Party, then such Investment shall be consummated by a Subsidiary Loan Party;
(bb) additional Investments; provided that both immediately before such Investment is mademade and immediately after giving effect thereto, plus an the Investment Conditions shall be satisfied on a Pro Forma Basis; and
(cc) Investments in the Term Loans, the Senior Unsecured Notes and other Permitted Indebtedness of the Borrower, in each case to the extent such purchases or repurchases are not otherwise prohibited hereunder. The amount equal of Investments that may be made at any time in Subsidiaries of the Borrower that are not Subsidiary Loan Parties pursuant to any returns Section 6.04(b) or Section 6.04(j) (the “Related Sections”) may, at the election of capital or sale proceeds actually received the Borrower, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of any such Investments (which such amount one Related Section shall not exceed be treated as having been used under the amount of such Investment (as determined above) at the time such Investment was made);other Related Section.
Appears in 3 contracts
Samples: Revolving Credit Agreement (AZEK Co Inc.), Revolving Credit Agreement (AZEK Co Inc.), Revolving Credit Agreement (AZEK Co Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a “Investment”), any other Person, except the following (collectively, “Permitted Investments”):
(1) the Transactions (including payment of the purchase consideration under the Merger Agreement)Transactions;
(2) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 5.0 million in an aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted AcquisitionsAcquisitions and not created in contemplation thereof;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 15.0 million and (ii) 0.503.75% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);
Appears in 3 contracts
Samples: Term Loan Credit Agreement (Leslie's, Inc.), Term Loan Credit Agreement (Leslie's, Inc.), Term Loan Credit Agreement (Leslie's, Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a “Investment”), any other Person, except the following (collectively, “Permitted Investments”):
(1) the Transactions (including payment of the purchase consideration under the Merger Agreement)Transactions;
(2) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 20.0 million in an aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted AcquisitionsAcquisitions and not created in contemplation thereof;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 75.0 million and (ii) 0.502.25% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);
Appears in 3 contracts
Samples: First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.), First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.), First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity InterestsInterests of, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions (including payment of the purchase consideration under the Merger Agreement)[reserved];
(2i) Investments by the U.S. Borrower or any Subsidiary in the Equity Interests of any Subsidiary; (ii) intercompany loans from the U.S. Borrower or any Subsidiary to the U.S. Borrower or any Subsidiary; and (iii) Guarantees by the U.S. Borrower or any Subsidiary of Indebtedness otherwise permitted hereunder of the U.S. Borrower or any Subsidiary; provided, that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made by Loan Parties after the Closing Date to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees by Loan Parties of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of $150 million and 5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b)); plus (y) the portion, if any, of the Available Investment Basket Amount on the date of such election that the U.S. Borrower elects to apply to this Section 6.04(b)(y); and provided further that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations and intercompany sales of Holdings (prior to a Qualified IPO), the U.S. Borrower and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the U.S. Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent EntityHoldings, the U.S. Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 10 million in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after thereof), (ii) in respect of payroll payments and expenses in the date made)ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any direct or indirect parent of the U.S. Borrower) solely to the extent that the amount of such loans and advances are contributed to the U.S. Borrower in cash as common equity;
(3f) Investments accounts receivable, security deposits and prepayments arising and trade credit granted in an amount not the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to exceed the Available Amount as extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrombusiness;
(4g) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted AcquisitionsSwap Agreements permitted pursuant to Section 6.13;
(5h) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since existing on the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases set forth on Schedule 6.04 to the 2005 Credit Agreement and any extensions, renewals or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) reinvestments thereof, so long as the aggregate principal amount of Indebtedness owing all Investments pursuant to the Borrower and the Guarantors by Restricted Subsidiaries that are this clause (h) is not Guarantors increased at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed above the amount of such Investment existing on the Closing Date;
(as determined abovei) at the time such Investment was madeInvestments resulting from pledges and deposits referred to in Sections 6.02(f), (g), (k), (t), (x), (bb) and (cc);
Appears in 3 contracts
Samples: Amendment Agreement (Hexion Specialty Chemicals, Inc.), Credit Agreement (Hexion Specialty Chemicals, Inc.), Credit Agreement (Hexion Specialty Chemicals, Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interestscapital stock, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations to, Guarantee any Indebtedness of, or make or permit to exist any investment or any other interest in (each, a “Investment”)in, any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) investments by the Transactions (including payment Borrower existing on or subscribed to prior to the date of this Agreement in the capital stock of the purchase consideration under the Merger Agreement)Subsidiaries;
(2b) loans and advances to officers, directors, officers or employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary in the ordinary course of business not in excess of $1,500,000 in the aggregate at any time outstanding;
(c) investments in, or loans and advances to, wholly owned Subsidiaries that are Guarantors or, in the case of an investment, that shall become wholly owned Subsidiaries that are Guarantors following such investment, and investments in, or loans and advances to, the Borrower (provided that the Indebtedness of the Borrower created by such loans and advances shall be subordinated in accordance with the requirements of Section 6.1(c) hereof);
(d) Guarantees entered into in the ordinary course of business of Indebtedness of wholly owned Subsidiaries that are Guarantors;
(e) Permitted Investments;
(f) investments existing on or subscribed to prior to the date of this Agreement and set forth on Schedule 6.4;
(g) in the case of the Borrower and the Subsidiaries other than Permitted Foreign Companies, investments in, and loans or advances to, Permitted Foreign Companies in a net aggregate amount not to exceed $15.0 million 10,000,000 in an any fiscal year plus, commencing with fiscal year 1997, 50% of the excess, if any, of (A) $10,000,000 over (B) the aggregate principal amount at of such investments, loans and advances made during the preceding fiscal year;
(h) in the case of the Borrower and the Subsidiaries other than Permitted Foreign Companies, Guarantees of Indebtedness of Permitted Foreign Companies; provided, however, that any time outstanding payment on such a Guarantee shall not be permitted under this clause (calculated without regard to write-downs h) (but may be permitted under clause (g) above or write-offs thereof after the date madeclause (j) below);
(3i) Investments in an the case of Permitted Foreign Companies, any investment in, or loan or advance to, or Guarantee of Indebtedness of, any Permitted Foreign Company;
(j) other or additional investments, loans and advances in a net aggregate amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors $10,000,000 at any time outstandingprior to the last day of fiscal year 1997 and $15,000,000 thereafter; and and
(ck) Guarantees under the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower Guarantee Agreement and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment Guarantee Agreement (as determined above) at defined in the time such Investment was madeChase Credit Agreement);.
Appears in 2 contracts
Samples: Senior Subordinated Loan Agreement (Schein Pharmaceutical Inc), Senior Subordinated Loan Agreement (Danbury Pharmacal Puerto Rico Inc)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations ofto, or make or permit to exist any investment or any other interest in (each, a “Investment”)in, any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) (i) investments by Holdings and the Subsidiaries existing on the 2016 Restatement Date in the Equity Interests of Holdings and the Subsidiaries and (ii) additional investments by Holdings and the Subsidiaries in the Equity Interests of Holdings, the Subsidiaries, the Unrestricted Subsidiaries and the Escrow Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to a Collateral Agreement or another Security Document (subject to Agreed Security Principles), (B) the Transactions (including payment aggregate amount of the purchase consideration under the Merger Agreement);
(2) investments by Loan Parties in, and loans and advances by Loan Parties to, Escrow Subsidiaries shall not exceed the amount reasonably determined by Holdings to officersbe the amount such Escrow Subsidiary would be required to pay in respect of accrued interest, directorsaccreted original issue discount, employees or consultants premium, fees and expenses in the event that the related Permitted Acquisition is not consummated at the applicable Escrow Release Effective Time and (C) the aggregate outstanding amount of any Parent Entityinvestments by Loan Parties in, the Borrower and loans and advances by Loan Parties to, Escrow Subsidiaries and Subsidiaries of Holdings that are not Loan Parties, and investments by Holdings or any Restricted Subsidiary not to exceed $15.0 million in an aggregate principal amount at in, and loans and advances by Holdings or any time outstanding Subsidiary to, any Unrestricted Subsidiary made after the 2016 Restatement Date (calculated determined without regard to any write-downs or write-offs thereof after the date made);
(3of such investments, loans and advances) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may shall not exceed (at the time such investment, loan or advance is made) the greater of (ix) $25.0 million 600,000,000 and (iiy) 0.5015% of Consolidated Total Assets EBITDA as of the date any such Investment is mademost recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Sections 5.04(a) or 5.04(b), plus an amount equal to any returns as the case may be, and 5.04(c) have been delivered or for which comparable financial statements have been filed with the Securities and Exchange Commission (it being understood and agreed (1) that in the event of capital the release of the Guarantee of a Loan Party upon or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed after the amount designation by Holdings of such Investment Loan Party as an Excluded Subsidiary pursuant to clause (as determined aboveh) of the definition thereof, any then-outstanding investment by any other Loan Party in, or any loan or advance by any other Loan Party to, such Loan Party, in each case, made after the 2016 Restatement Date and while such entity was a Loan Party, shall be deemed to have been made at the time of the effectiveness of such Investment was madedesignation and shall be subject to the limitations set forth in this proviso and (2) that any investment, loan and advance subject to this proviso shall no longer be deemed to be outstanding if the Escrow Subsidiary, Unrestricted Subsidiary or Subsidiary that received such investment, loan or advance subsequently becomes, or is merged into, amalgamated or consolidated with, a Loan Party);
Appears in 2 contracts
Samples: Specified Refinancing Amendment, Incremental Amendment and Administrative Agency Transfer Agreement (Pactiv Evergreen Inc.), Credit Agreement (Pactiv Evergreen Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, another Person, make a designation of a Restricted Subsidiary as an Unrestricted Subsidiary or make or permit to exist any investment or any other interest in Acquisition (each, a an “Investment”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions Transactions;
(b) Investments among the Borrower and its Subsidiaries; provided that the sum of Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof, but net in the case of intercompany loans, and in any event, after giving effect to any returns, profits, distributions, and similar amounts, repayment of loans and the release of guarantees) after the Closing Date by the Borrower and the Subsidiary Guarantors in Subsidiaries (including payment Foreign Subsidiaries of the purchase Borrower) that are not Subsidiary Guarantors shall not exceed an aggregate net amount equal to $10.0 million outstanding at any time; and provided further that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Restricted Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(c) Permitted Investments and investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of promissory notes and other non-cash consideration for Dispositions permitted under the Merger AgreementSection 6.05 (excluding Section 6.05(e));
(2e) (i) loans and advances to directors, officers, directorsemployees, employees members of management or consultants of Holdings (or any Parent Entity), the Borrower or any Restricted Subsidiary in the ordinary course of business not to exceed $15.0 2.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% advances of Consolidated Total Assets payroll payments and expenses to directors, officers, employees, members of management or consultants in the ordinary course of business;
(f) accounts receivable, notes receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers made in the ordinary course of business;
(g) Investments under Swap Agreements permitted pursuant to Section 6.01;
(h) Investments existing on, or contractually committed as of of, the date Closing Date and set forth on Schedule 6.04 and any modification, replacement, renewal or extension thereof so long as any such Investment is mademodification, plus an amount equal to any returns of capital renewal or sale proceeds actually received in respect of any such Investments (which such amount shall extension thereof does not exceed increase the amount of such Investment except by terms thereof or as otherwise permitted by this Section 6.04;
(as determined abovei) at the time such Investment was madeInvestments resulting from pledges and deposits permitted by Section 6.02(b)(iii), (f) and (g);
(j) Investments (i) constituting Permitted Business Acquisitions, (ii) in any Subsidiary in an amount required to permit such Person to consummate a Permitted Business Acquisition and (iii) in any Subsidiary that is not a Subsidiary Guarantor consisting of the Equity Interests of any Person who is not a Subsidiary Guarantor;
(k) Guarantees (i) permitted by Sections 6.01(k) and (ii) of leases (other than Capital Lease Obligations) or of other obligations not constituting Indebtedness, in each case in the ordinary course of business;
(l) Investments received in connection with the bankruptcy or reorganization of any Person, or settlement of obligations of, or other disputes with or judgments against, or foreclosure or deed in lieu of foreclosure with respect to any Lien held as security for an obligation, in each case in the ordinary course of business;
Appears in 2 contracts
Samples: Credit Agreement (Tuesday Morning Corp/De), Credit Agreement (Tuesday Morning Corp/De)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) the following Transactions;
(collectivelyi) Investments by the Borrower or any Subsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Borrower or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) $75.0 million and (2) 5.0% of Consolidated Total Assets (plus any return of capital actually received by the Transactions respective investors in respect of Investments theretofore made by them pursuant to this paragraph (including payment b)); plus (y) the portion, if any, of the purchase consideration under Cumulative Credit on the Merger Agreementdate of such election that the Borrower elects to apply to this Section 6.04(b)(y), such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any direct or indirect parent of Holdings) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements permitted pursuant to Section 6.12;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing on the Closing Date;
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), (u) and (gg);
(j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4i) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 105.0 million and (ii) 0.507.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date any of such Investment is made, incurrence for which financial statements have been delivered pursuant to Section 5.04 (plus an amount equal to any returns of capital or sale proceeds actually received by the respective investor in respect of any investments theretofore made by it pursuant to this paragraph (j)) plus (ii) the portion, if any, of the Cumulative Credit on the date of such Investments (which election that the Borrower elects to apply to this Section 6.04(j)(ii), such amount shall not exceed election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of a corporation merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent permitted under this Section 6.04 and, (ii) in the case of any acquisition, merger or consolidation, in accordance with Section 6.05 and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of Holdings (or any direct or indirect parent of Holdings);
(r) Investments in the equity interests of one or more newly formed persons that are received in consideration of the contribution by Holdings, the Borrower or the applicable Subsidiaries of assets (including Equity Interests and cash) to such person or persons; provided, that (i) the fair market value of such assets, determined on an arms’-length basis, so contributed pursuant to this paragraph (r) shall not in the aggregate exceed $20.0 million and (ii) in respect of each such contribution, a Responsible Officer of the Borrower shall certify, in a form to be agreed upon by the Borrower and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing, (y) the fair market value of the assets so contributed and (z) that the requirements of paragraph (i) of this proviso remain satisfied;
(s) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) Investments in Foreign Subsidiaries not to exceed $20.0 million in the aggregate, as valued at the fair market value of such Investment (as determined above) at the time such Investment was is made;
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(x) Investments by Borrower and its Subsidiaries, including loans to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a dividend or distribution in such amount (provided that the amount of any such Investment shall also be deemed to be a distribution under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Investments arising as a result of Permitted Receivables Financings;
(z) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(aa) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business;
(bb) Investments received substantially contemporaneously in exchange for Equity Interests of the Borrower; provided that such Investments are not included in any determination of the Cumulative Credit; and
(cc) Investments in joint ventures not in excess of $20.0 million in the aggregate. The amount of Investments that may be made at any time pursuant to Section 6.04(b) or 6.04(j) (such Sections, the “Related Sections”) may, at the election of the Borrower, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section.
Appears in 2 contracts
Samples: Credit Agreement (Verso Sartell LLC), Credit Agreement (Verso Paper Holdings LLC)
Investments, Loans and Advances. Purchase, hold (i) Purchase or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofof any other person, (ii) make or permit to exist any loans or advances to or Guarantees of the obligations Indebtedness of any other person (other than in respect of
(A) intercompany liabilities incurred in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries and (B) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business or consistent with past practice or industry norm), or make (iii) purchase or permit to exist any investment otherwise acquire, in one transaction or any other interest in a series of related transactions, (eachx) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, a line of business or division of such person (each of the foregoing, an “Investment”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions (including payment of the purchase consideration under the Merger Agreement)Transactions;
(2i) Investments by the Borrower or any Subsidiary in the Equity Interests of the Borrower or any Subsidiary (or any entity that will become a Subsidiary as a result of such Investment); (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary of Indebtedness otherwise permitted hereunder of the Borrower or any Subsidiary;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the Disposition of assets permitted under Section 6.05;
(e) loans and advances to to, or Guarantees of Indebtedness of, officers, directors, employees or consultants of Holdings (or any Parent Entity), the Borrower or any Subsidiary (i) in the ordinary course of business or consistent with past practice or industry norm in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any subsequent change in value) not to exceed $10,000,000, (ii) in respect of payroll payments and expenses in the ordinary course of business or consistent with past practice or industry norm, (iii) for business-related travel expenses, moving expenses and other similar expenses, in each case, incurred in the ordinary course of business or consistent with past practice or industry norm and (iv) in connection with such person’s purchase of Equity Interests of the Borrower or Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business or consistent with past practice or industry norm and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers or customers made in the ordinary course of business or consistent with past practice or industry norm;
(g) Hedging Agreements entered into for non-speculative purposes;
(h) Investments existing on, or contractually committed as of, the Closing Date (provided, that any such Investment that is in excess of $5,000,000 shall be set forth on Schedule 6.04) and any extensions, renewals, replacements or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment or contractual commitment as in existence on the Closing Date or as otherwise permitted by this Section 6.04);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (o), (r), (s), (ee) and (ll);
(j) Investments by the Borrower or any Subsidiary in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any subsequent change in value) not to exceed the sum of (X) the greater of $140,000,000 and 0.30 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, plus (Y) any portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(j)(Y), which such election shall (unless such Investment is made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer thereof, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit elected to be so applied, and plus (Z) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, repurchases, redemptions, income and similar amounts) actually received in respect of any such Investment; provided, that if any Investment pursuant to this Section 6.04(j) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) and not in reliance on this Section 6.04(j);
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Subsidiaries and Guarantees by Subsidiaries permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or consistent with past practice or industry norm or Investments acquired by the Borrower or a Subsidiary as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a person that becomes a Subsidiary after the Closing Date (including by means of a Delaware LLC Division) or of a person merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent such acquisition, merger or consolidation is permitted under this Section 6.04, (ii) in the case of any acquisition, merger or consolidation, in accordance with Section 6.05 (other than Section 6.05(e)(i)) and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(o) acquisitions by the Borrower or any Subsidiary of obligations of one or more directors, consultants, officers or other employees of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Restricted Subsidiary not Parent Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to exceed $15.0 million such directors, consultants, officers or employees in an aggregate principal amount at connection with the acquisition of any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made)such obligations;
(3p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capitalized Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or industry norm;
(q) Investments to the extent that payment for such Investments is made with or financed with the proceeds of the sale or issuance of Equity Interests of the Borrower, Holdings or any Parent Entity; provided, that any proceeds of such sale or issuance of Equity Interests are not included in any determination of the Cumulative Credit;
(r) Investments in an amount not to exceed the Available Amount as Equity Interests of one or more newly formed persons that are received in consideration of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held contribution by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among Holdings, the Borrower and or the Restricted Subsidiaries applicable Subsidiary of assets (including intercompany Indebtedness)Equity Interests and cash) to such person or persons; provided provided, that the sum of (ai) the aggregate fair market value of all such Investments assets, determined in good faith by the Borrower, so contributed pursuant to this clause (other than intercompany Indebtedness r) shall not in the aggregate exceed $10,000,000 and Guarantees (ii) in respect of Indebtedness) made since each such contribution, a Responsible Officer of the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases Borrower shall certify, in value) a form to be agreed upon by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; Administrative Agent (bx) immediately after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (y) the aggregate principal amount fair market value (as determined in good faith by the Borrower) of Indebtedness owing the assets so contributed and (z) that the requirements of clause (i) of this proviso remain satisfied;
(s) Investments consisting of Restricted Payments permitted under Section 6.06;
(t) Investments in the ordinary course of business or consistent with past practice or industry norm consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;
(u) loans and leases of animals to third parties for the purposes of exhibition, storage or breeding, as the case may be, in each case in the ordinary course of business and consistent with past practices;
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to this Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and or such Subsidiary;
(cx) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed Investments by the Borrower and its Subsidiaries, including loans to any direct or indirect parent of the Guarantors Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount (valued at the time of the making thereof, and without giving effect to any time outstandingsubsequent changes in value) (provided, together with that the outstanding amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 solely for purposes of determining capacity thereunder);
(y) Investments consisting of Securitization Assets or arising as a result of Permitted Securitization Financings or receivables sales or similar factoring arrangements of Receivables Assets;
(z) Investments made in Restricted Subsidiaries connection with obtaining, maintaining or renewing client and customer contracts in the ordinary course of business or consistent with past practice or industry norm;
(aa) to the extent constituting Investments, purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses, leases or contributions of Intellectual Property in each case in the ordinary course of business or consistent with past practice or industry norm;
(bb) Investments received substantially contemporaneously in exchange for Equity Interests of the Borrower, Holdings or any Parent Entity; provided, that the issuance of such Equity Interests are not Guarantors included in any determination of the Cumulative Credit;
(cc) Investments in joint ventures; provided that the aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any subsequent changes in value) of Investments made after the Closing Date pursuant to this Section 6.04(31), may not exceed the greater of (i6.04(cc) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);sum of
Appears in 2 contracts
Samples: Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Investments, Loans and Advances. Purchase, hold (i) Purchase or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofof any other person, (ii) make or permit to exist any loans or advances to or Guarantees of the obligations ofIndebtedness of any other person (other than in respect of (A) intercompany liabilities incurred in connection with the cash management, tax and accounting operations of the Borrower Agent and the Subsidiaries and (B) intercompany loans, advances or Indebtedness by or among the Borrower Agent and its Subsidiaries having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business or consistent with past practice or industry norm), or make (iii) purchase or permit to exist any investment otherwise acquire, in one transaction or any other interest in a series of related transactions, (eachx) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, a line of business or division of such person (each of the foregoing, an “Investment”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions (including payment of the purchase consideration under the Merger Agreement)Transactions;
(2i) Investments by the Borrower Agent or any Subsidiary in the Equity Interests of the Borrower Agent or any Subsidiary (or any entity that will become a Subsidiary as a result of such Investment); (ii) intercompany loans from the Borrower Agent or any Subsidiary to the Borrower Agent or any Subsidiary; and (iii) Guarantees by the Borrower Agent or any Subsidiary of Indebtedness otherwise permitted hereunder of the Borrower Agent or any Subsidiary;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower Agent or any Subsidiary of non-cash consideration for the Disposition of assets permitted under Section 6.05;
(e) loans and advances to to, or Guarantees of Indebtedness of, officers, directors, employees or consultants of Holdings (or any Parent Entity), the Borrower Agent or any Restricted Subsidiary (i) in the ordinary course of business or consistent with past practice or industry norm in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any subsequent change in value) not to exceed $15.0 million 10,000,000, (ii) in an aggregate principal respect of payroll payments and expenses in the ordinary course of business or consistent with past practice or industry norm, (iii) for business-related travel expenses, moving expenses and other similar expenses, in each case, incurred in the ordinary course of business or consistent with past practice or industry norm and (iv) in connection with such person’s purchase of Equity Interests of the Borrower Agent or Holdings (or any Parent Entity) solely to the extent that the amount at any time outstanding (calculated without regard of such loans and advances shall be contributed to write-downs or write-offs thereof after the date made)Borrower Agent in cash as common equity;
(3f) Investments accounts receivable, security deposits and prepayments arising and trade credit granted in an amount not the ordinary course of business or consistent with past practice or industry norm and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to exceed the Available Amount as extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers or customers made in the ordinary course of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment business or would result therefromconsistent with past practice or industry norm;
(4g) Permitted Acquisitions and preHedging Agreements entered into for non-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitionsspeculative purposes;
(5h) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since existing on, or contractually committed as of, the Closing Date (with all provided, that any such Investments being valued at their original fair market value Investment that is in excess of $5,000,000 shall be set forth on Schedule 6.04) and without taking into account subsequent increases any extensions, renewals, replacements or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) reinvestments thereof, so long as the aggregate principal amount of Indebtedness owing all Investments pursuant to the Borrower and the Guarantors by Restricted Subsidiaries that are this clause (h) is not Guarantors increased at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as determined above) at required by the time terms of any such Investment was madeor contractual commitment as in existence on the Closing Date or as otherwise permitted by this Section 6.04);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (o), (r), (s), (ee) and (ll);
Appears in 2 contracts
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.), Credit Agreement (Dave & Buster's Entertainment, Inc.)
Investments, Loans and Advances. Purchase, hold (i) Purchase or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofof any other person, (ii) make any loans, advances or permit to exist any loans or advances capital contribution to or Guarantees of the obligations of, or make or permit to exist any investment or Indebtedness of any other interest person or (iii) purchase or otherwise acquire, in one transaction or a series of related transactions, (eachx) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, a line of business or division of such person (each of the foregoing, an “Investment”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) Investments to effect the Transactions (including payment of the purchase consideration under the Merger Agreement)Transactions;
(2b) Investments by the Borrower, any Guarantor (other than Holdings) or any Subsidiary in the Borrower, any Guarantor (other than Holdings) or any Subsidiary; provided, that the aggregate amount of Investments made under this clause (b) in any Subsidiary that is not a Guarantor shall not exceed the greater of $25,000,000 and 30% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for any Disposition of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 million (i) in the ordinary course of business in an aggregate principal outstanding amount (valued at the time of the making thereof, and without giving effect to any time outstanding (calculated without regard to write-downs or write-offs thereof) not to exceed $5,000,000 for the most recently ended Test Period as of such time, (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of the Borrower;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Hedging Agreements entered into for non-speculative purposes (including Cash or Permitted Investments pledged pursuant to such Hedge Agreements or otherwise in favor of third party providers of any swaps, derivatives or other hedging arrangements, or counterparties of Hedging Agreements, in the ordinary course of business);
(3h) Investments (not in Subsidiaries, which are provided in clause (b) above) existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals, replacements or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date or as otherwise permitted by this Section 6.04);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (n), (q), (r), (dd) and (jj);
(j) Investments by the Borrower or any Subsidiary in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed at the time made the sum of (X) the greater of $25,000,000 and 30% of Adjusted Consolidated EBITDA for the most recently ended Test Period as of such time, plus (Y) any portion of the Available Amount as on the date of such election that the Borrower elects to apply to this Section 6.04(j)(Y), so long as, solely in the case of amounts applied pursuant to clause (a) of the date such Investments are made; provided that definition of “Available Amount”, immediately after giving effect thereto (i) no Event of Default has shall have occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment Net Leverage Ratio on a Pro Forma Basis is madenot greater than 3.00 to 1.00, plus (Z) an amount equal to any returns (including dividends, interest, distributions, returns of capital or sale proceeds principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investments Investment (which such amount shall not exceed excluding any returns in excess of the amount of such originally invested) pursuant to clause (X) above; provided, that if any Investment (as determined abovepursuant to this Section 6.04(j) at is made in any person that was not a Subsidiary on the time date on which such Investment was mademade but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the provisions thereof) and not in reliance on this Section 6.04(j);
(k) Investments constituting Permitted Acquisitions;
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower or a Subsidiary as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
Appears in 2 contracts
Samples: Credit Agreement (Westrock Coffee Co), Incremental Assumption Agreement and Amendment No. 1 (Westrock Coffee Co)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and the Subsidiaries) to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), in any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) Investments (including, but not limited to, Investments in Equity Interests, intercompany loans, and Guarantees of Indebtedness otherwise expressly permitted hereunder) after the Transactions Closing Date by (including payment i) Loan Parties in the Foreign Borrower or in Subsidiaries that are not Loan Parties in an aggregate amount, when combined with the aggregate outstanding principal amount of Revolving Facility Loans made to the Foreign Borrower, not to exceed an amount equal to U.S.$50.0 million (valued at the time of the purchase consideration under making thereof and at the Merger Agreementtime any Revolving Facility Loans are made to the Foreign Borrower and without giving effect to any write-downs or write-offs thereof) (plus any return of capital actually received by the respective investors in respect of investments previously made by them pursuant to this clause a(i)), (ii) Loan Parties in Domestic Loan Parties and (iii) Subsidiaries that are not Loan Parties in Loan Parties.
(b) Permitted Investments and investments that were Permitted Investments when made;
(2c) Investments arising out of the receipt by the Company or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05;
(d) (i) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower Company or any Restricted Subsidiary in the ordinary course of business not to exceed $15.0 U.S.$4.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof) and (ii) advances of payroll payments and expenses to employees in the ordinary course of business;
(e) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(f) Swap Agreements permitted pursuant to Section 6.13 and Capital Expenditures permitted pursuant to Section 6.10;
(g) Investments existing on the Closing Date and set forth on Part I of Schedule 6.04 and Investments set forth on Part II of Schedule 6.04;
(h) Investments resulting from pledges and deposits referred to in Sections 6.02(f) and (g);
(3i) other Investments by the Company or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed U.S.$50.0 million (plus any returns of capital actually received by the Available Amount as respective investor in respect of investments theretofore made by it pursuant to this paragraph (i));
(j) Investments constituting Permitted Business Acquisitions in an aggregate amount, which shall be deemed to include the principal amount of Indebtedness that is assumed pursuant to Section 6.01 in connection with such Permitted Business Acquisitions, not to exceed U.S.$75.0 million during any fiscal year of the date such Investments are made; Company (provided that no such Dollar limitation shall apply so long as, at the time of making any such Investment and after giving effect thereto, (1) no Default or Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefromtherefrom and (2) the Leverage Ratio shall be less than 2.50:1.00 calculated on a pro forma basis as of the last day of the most recently ended fiscal quarter in respect of which financial statements have been delivered pursuant to Section 5.04);
(4k) Permitted Acquisitions and pre-existing additional Investments held by Persons acquired may be made from time to time to the extent made with proceeds of Equity Interests of the Company, which proceeds or Investments in Permitted Acquisitions or acquired in connection with Permitted Acquisitionsturn are contributed (as common equity) to any Loan Party;
(5l) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than including, but not limited to, Investments in Equity Interests, intercompany Indebtedness loans, and Guarantees of IndebtednessIndebtedness otherwise expressly permitted hereunder) made since after the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; Domestic Loan Parties in any Loan Party or other Subsidiary.
(bm) Investments arising as a result of Permitted Receivables Financings;
(n) the Transactions;
(o) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business;
(p) Investments of a Subsidiary acquired after the Closing Date or of a corporation merged into the Company or merged into or consolidated with a Subsidiary in accordance with Section 6.05 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(q) Guarantees by the Company or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by any Subsidiary in the ordinary course of business;
(r) a joint venture (including a non-majority owned joint venture) with, or a significant Investment in, a Chinese entity or a project or venture with such Chinese entity (in either case, in an aggregate principal amount not to exceed U.S.$50.0 million) involving a Subsidiary of Indebtedness owing the Company doing business in China, which venture may result in the Company no longer owning a majority of the Equity Interests of such Subsidiary or the Company or any of its Subsidiaries acquiring an interest in one or more new joint venture entities arising in connection with such project or venture;
(s) Investments to investigate or remedy environmental conditions in the ordinary course of business and otherwise in an aggregate amount not exceeding U.S.$5.0 million and already accrued at March 31, 2010; and
(t) Loans, capital contributions and other Investments made subsequent to the Borrower and Closing Date in connection with the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);Permitted Foreign Restructuring.
Appears in 2 contracts
Samples: Credit Agreement (Chart Industries Inc), Credit Agreement (Chart Industries Inc)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make Make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a “Investment”), any other Person, except the following (collectively, “Permitted Investments”):
(1) the Transactions (including payment of the purchase consideration under the Merger Agreement)Transactions;
(2) loans and advances to (or for the benefit of) officers, directors, employees employees, managers, consultants, independent contractors or consultants other service providers of any Parent EntityHoldings, the Borrower Company or any Restricted Subsidiary (i) for business-related travel and entertainment expenses, moving and relocation expenses and other similar expenses, in each case incurred in the ordinary course of business or (ii) not to exceed as of the date such Investment is made the greater of (x) $15.0 million 80,000,000 and (y) 10% of Consolidated EBITDA for the most recently ended Test Period, in an aggregate principal amount at any time outstanding as of the date such Investment is made (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not to exceed the Available Amount as of the date such Investments are Investment is made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments (not made in contemplation of such acquisition) held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions; provided, that, in the case of Permitted Acquisitions of Persons that do not become Loan Parties, the Payment Conditions are satisfied on a Pro Forma Basis immediately after giving effect to such Investment;
(5) intercompany Investments by and among the Borrower Holdings and the its Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum aggregate amount of Investments made by the Company and the Guarantors in Restricted Subsidiaries that are not Loan Parties under this clause (5) shall not exceed as of the date such Investment is made the greater of (ai) $280,000,000 and (ii) 35% of Consolidated EBITDA for the most recently ended Test Period as of the date of such Investment;
(6) Investments in Unrestricted Subsidiaries (including Permitted Acquisitions); provided that the aggregate fair market value (as determined in good faith by the Company) of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value (as determined in good faith by the Company) and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, (x) $10,000,000 plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);
(7) Cash Equivalents and, to the extent not made for speculative purposes, Investment Grade Securities or Investments that were Cash Equivalents or Investment Grade Securities when made;
(8) Investments arising out of the receipt by Holdings or any of the Restricted Subsidiaries of non-cash consideration in connection with any sale of assets permitted under Section 6.05;
(9) accounts receivable, security deposits and prepayments and other credits granted or made in the ordinary course of business and any Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and others, including in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, such account debtors and others, in each case in the ordinary course of business;
(10) Investments acquired as a result of a foreclosure by Holdings or any Restricted Subsidiary with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(11) Hedge Agreements and Cash Management Services;
(12) Investments existing on, or contractually committed as of, the Closing Date and, if greater than $25,000,000, as set forth on Schedule 6.04 and any replacements, extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (12) is not increased at any time above the amount of such Investments existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date) or as otherwise permitted by this Agreement;
(13) Investments resulting from pledges and deposits that are Permitted Liens;
(14) [reserved];
(15) acquisitions of obligations of one or more officers or other employees or any employee benefit trust or similar entity of Holdings, the Company or any Subsidiary of Holdings in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings, so long as either no cash is actually advanced by Holdings or any Restricted Subsidiary to such officers or employees in connection with the acquisition of any such obligations or to the extent advances are made in cash, the amount of any such advance is contributed substantially simultaneously to Holdings or any Restricted Subsidiary in cash;
(16) Guarantees of operating leases (for the avoidance of doubt, excluding Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case, entered into by Holdings or any Restricted Subsidiary in the ordinary course of business;
(17) Investments to the extent that payment for such Investments is made with Equity Interests (other than Disqualified Stock) of Holdings and such Investment is contributed to the Company;
(18) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(19) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;
(20) Guarantees permitted under Section 6.01 (other than by reference to this Section 6.04);
(21) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of Holdings or any Restricted Subsidiary;
(22) Investments, including loans and advances, to Holdings so long as Holdings or any Restricted Subsidiary would otherwise be permitted to make a Restricted Payment in such amount; provided that the amount of any such Investment will be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 for all purposes of this Agreement;
(23) Investments consisting of the leasing or licensing of intellectual property in the ordinary course of business and, if such leasing or licensing is other than on a non-exclusive basis that do not materially interfere with the business of Company and the Restricted Subsidiaries (taken as a whole) or the contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(24) purchases or acquisitions of inventory, supplies, materials and equipment or purchases or acquisitions of contract rights or intellectual property;
(25) Investments in a Receivables SPE or any Investment by a Receivables SPE in any other Person, including the payment of receivables fees, in each case, (A) in connection with a Qualified Receivables Transaction and (B) constituting a sale, transfer or other disposition permitted pursuant to Section 6.05(17); provided, the Company shall deliver an updated pro forma Borrowing Base Certificate in connection with any such Investment and, after giving effect to such Investment, such Borrowing Base Certificate shall demonstrate Availability greater than zero.
(26) [reserved];
(27) [reserved];
(28) Investments that are made with Excluded Contributions;
(29) additional Investments (including Permitted Acquisitions) so long as the aggregate fair market value (as determined in good faith by the Borrower) of such Investments made since the Closing Date under this clause (29) that remain outstanding (with all such Investments being valued at their original fair market value (as determined in good faith by the Borrower) and without taking into account subsequent increases or decreases in value, will not exceed as of the date such Investment is made the greater of (a) $200,000,000 and (b) 25% of Consolidated EBITDA for the most recently ended Test Period as of the date such Investment is made, plus, in each case, any returns of capital actually received by Holdings or any of its Restricted Subsidiaries in respect of such Investments without duplication of any such capital that is applied to the Available Amount;
(30) any transaction to the extent it constitutes an Investment that is permitted and made in accordance with Section 5.17 (except transactions described in clauses (6), (8) and (21) thereof);
(31) Investments in Indebtedness of Holdings or any of its Restricted Subsidiaries permitted under Section 6.01 (other than by reference to this Section 6.04);
(32) loans and advances relating to indemnification or reimbursement of any officers, directors, employees, managers, independent contractors or other service providers in respect of customary liabilities relating to their serving in any such capacity or as otherwise specified in Section 5.17;
(33) any Investment, if as of the date such Investment is made the Payment Conditions are satisfied on a Pro Forma Basis immediately after giving effect to such Investment;
(34) Investments made in the ordinary course of business in connection with obtaining, maintaining or renewing client and customer contracts;
(35) loans or advances made to, and guarantees with respect to obligations of, distributors, suppliers, customers, franchisees, licensors, licensees, sublicensors and sublicensees and distribution partners in the ordinary course of business to the extent such loans, advances or guarantees constitute Investments;
(36) Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business;
(37) advances, loans or extensions of trade credit in the ordinary course of business by Holdings or any of its Restricted Subsidiaries;
(38) Investments made in joint ventures as required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture agreements and similar binding arrangements entered into in the ordinary course of business so long as the aggregate fair market value (as determined in good faith by the Company) of all such Investments that remain outstanding (with all such Investments being valued at their original fair market value (as determined in good faith by the Company) and without taking into account subsequent increases or decreases in value) do not exceed, when taken together with the principal amount of the Indebtedness outstanding under Section 6.01(21), the greater of (i) $120,000,000 and (ii) 15% of Consolidated EBITDA for the most recently ended Test Period;
(39) [reserved];
(40) Investments in the nature of pledges and deposits with respect to leases or utilities provided to third parties in the ordinary course of business;
(41) Investments in industrial development or revenue bonds or similar obligations secured by assets leased to and operated by Holdings or any of its Subsidiaries that were issued in connection with the financing of such assets, so long as Holdings or any such Subsidiary may obtain title to such assets at any time by optionally canceling such bonds or obligations, paying a nominal fee and terminating such financing transaction;
(42) advances of payroll payments to employees in the ordinary course of business;
(43) Investments in deposit accounts, securities accounts and commodities accounts maintained by Holdings or any Restricted Subsidiary;
(44) Investments in an aggregate amount not to exceed the Net Cash Proceeds of any Indebtedness incurred in reliance on Section 6.01(3); provided that, the Payment Conditions are satisfied on a Pro Forma Basis immediately after giving effect to such Investment;
(45) [reserved]; and
(46) guarantees by any Loan Party or any Restricted Subsidiary of leases or of obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business.
Appears in 2 contracts
Samples: Credit Agreement (Xerox Corp), Credit Agreement (Xerox Corp)
Investments, Loans and Advances. Purchase, hold (i) Purchase or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofof any other person, (ii) make or permit to exist any loans or advances to or Guarantees of the obligations ofIndebtedness of any other person, or make (iii) purchase or permit to exist any investment otherwise acquire, in one transaction or any other interest in a series of related transactions, (eachx) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, a line of business or division of such person (each of the foregoing, an “Investment”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) Investments to effect the Transactions (including payment of the purchase consideration under the Merger Agreement)Transactions;
(2b) (i) Investments (x) by the Borrower or any Subsidiary in the Equity Interests of any Subsidiary as of the Closing Date and set forth on Part A of Schedule 6.04 and (y) by the Borrower or any Subsidiary consisting of intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary as of the Closing Date and set forth on Part B of Schedule 6.04; provided, that to the extent any such intercompany loan that is owing by a non-Guarantor to the Borrower or any Guarantor (the “Scheduled Loans”) (or any additional Investments made by the Borrower or any Guarantor pursuant to this proviso) is repaid after the Closing Date or the Borrower or any Guarantor receives, after the Closing Date, any dividend, distribution, interest payment, return of capital, repayment or other amount in respect of any scheduled Investment in the Equity Interests of any non-Guarantor (a “Return of Scheduled Equity”), then additional Investments may be made by the Borrower or any Guarantor in any non-Guarantor in an aggregate amount up to the amount actually received by the Borrower or any Guarantor after the Closing Date as payment in respect of such Investments; provided further that in no event will the aggregate amount of additional Investments made by the Borrower or any Guarantor in non-Guarantors pursuant to this proviso exceed the sum of the original principal amount of the Scheduled Loans on the Closing Date and the aggregate amount of Returns of Scheduled Equity; (ii) Investments in the Borrower or any Guarantor; (iii) Investments by any Subsidiary that is not a Loan Party in any other Subsidiary that is not a Loan Party; (iv) Investments by the Borrower or any Guarantor in any Subsidiary that is not Loan Party in an aggregate amount for all such outstanding Investments made after the Closing Date not to exceed the greater of $250,000,000 and 2.0% of Consolidated Total Assets when made; (v) other intercompany liabilities amongst the Borrower and the Guarantors incurred in the ordinary course of business; (vi) other intercompany liabilities amongst Subsidiaries that are not Guarantors incurred in the ordinary course of business in connection with the cash management operations of such Subsidiaries; and (vii) Investments by the Borrower or any Guarantor in any Subsidiary that is not a Loan Party consisting solely of (x) the contribution or other Disposition of Equity Interests or Indebtedness of any other Subsidiary that is not a Loan Party held directly by the Borrower or such Guarantor in exchange for Indebtedness, Equity Interests (or additional share premium or paid in capital in respect of Equity Interests) or a combination thereof of the Subsidiary to which such contribution or other Disposition is made or (y) an exchange of Equity Interests of any other Subsidiary that is not a Loan Party for Indebtedness of such Subsidiary; provided, that immediately following the consummation of an Investment pursuant to the preceding clause (x) or (y), the Subsidiary whose Equity Interests or Indebtedness are the subject of such Investment remains a Subsidiary;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the Disposition of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 million (i) in the ordinary course of business in an aggregate principal outstanding amount (valued at the time of the making thereof, and without giving effect to any time outstanding (calculated without regard to write-downs or write-offs thereof) not to exceed $10,000,000, (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of the Borrower;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Hedging Agreements entered into for non-speculative purposes;
(h) Investments (not in Subsidiaries, which are provided in clause (b) above) existing on, or contractually committed as of, the Closing Date and set forth on Part C of Schedule 6.04 and any extensions, renewals, replacements or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date or as otherwise permitted by this Section 6.04);
(3i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (n), (q), (r), (dd) and (ii);
(j) other Investments by the Borrower or any Subsidiary in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (aX) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million 1,400,000,000 and (ii) 0.5010.0% of Consolidated Total Assets as of the date any such Investment is when made, plus (Y) so long as no Default or Event of Default shall have occurred and be continuing, any portion of the Available Amount on the date of such election that the Borrower elects to apply to this Section 6.04(j)(Y) in a written notice of a Responsible Officer thereof, which notice shall set forth calculations in reasonable detail the amount of Available Amount immediately prior to such election and the amount thereof elected to be so applied, and plus (Z) an amount equal to any returns (including dividends, interest, distributions, returns of capital or sale proceeds principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment (excluding any returns in excess of the amount originally invested) pursuant to clause (X); provided, that if any Investment pursuant to this Section 6.04(j) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the provisions thereof) and not in reliance on this Section 6.04(j);
(k) Investments constituting Permitted Business Acquisitions;
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower or a Subsidiary as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(m) Investments of a Subsidiary acquired after the Closing Date or of a person merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent such acquisition, merger, amalgamation or consolidation is permitted under this Section 6.04, (ii) in the case of any acquisition, merger, amalgamation or consolidation, in accordance with Section 6.05 and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(n) acquisitions by the Borrower of obligations of one or more officers or other employees of the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of the Borrower, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(o) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capitalized Lease Obligations) or of other obligations that do not constitute Indebtedness of the kind described in clauses (b), (e), (f), (g), (h), (i), (j) or (k) of the definition thereof, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(p) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of the Borrower; provided, that the issuance of such Equity Interests are not included in any determination of the Available Amount;
(q) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;
(r) [reserved];
(s) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(t) Investments by the Borrower and the Subsidiaries, if the Borrower or any Subsidiary would otherwise be permitted to make a Restricted Payment under Section 6.06(g) in such amount (provided, that the amount of any such Investment shall also be deemed to be a Restricted Payment under Section 6.06(g) for all purposes of this Agreement);
(u) Investments consisting of transfers of Permitted Receivables Facility Assets or arising as a result of Qualified Receivables Facilities;
(v) Investments consisting of the licensing or contribution of Intellectual Property pursuant to joint marketing or other similar arrangements with other persons;
(w) to the extent constituting Investments, purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of Intellectual Property in each case in the ordinary course of business;
(x) [reserved];
(y) any Investment in fixed income or other assets by any Subsidiary that is a so-called “captive” insurance company (each, an “Insurance Subsidiary”) consistent with customary practices of portfolio management;
(z) any Investment in Insurance Subsidiaries that are (a) required by law or applicable regulators or (b) in an aggregate amount for all such investments not to exceed the greater of $50,000,000 and 0.50% of Consolidated Total Assets when made; and
(aa) additional Investments, so long as, at the time any such Investment is made and immediately after giving effect thereto, (x) no Default or Event of Default shall have occurred and is continuing and (y) the Total Net Leverage Ratio on a Pro Forma Basis is not greater than 3.50 to 1.00. For purposes of determining compliance with this Section 6.04, (A) an Investment need not be permitted solely by reference to one category of permitted Investments (which or any portion thereof) described in Sections 6.04(a) through (aa) but may be permitted in part under any relevant combination thereof and (B) in the event that an Investment (or any portion thereof) meets the criteria of one or more of the categories of permitted Investments (or any portion thereof) described in Sections 6.04(a) through (aa), the Borrower may, in its sole discretion, classify or divide such amount shall not exceed Investment (or any portion thereof) in any manner that complies with this Section 6.04 and will be entitled to only include the amount and type of such Investment (or any portion thereof) in one or more (as determined relevant) of the above clauses (or any portion thereof) and such Investment (or any portion thereof) shall be treated as having been made or existing pursuant to only such clause or clauses (or any portion thereof); provided, that all Investments described in Schedule 6.04 shall be deemed outstanding under Section 6.04(b) or Section 6.04(h), as applicable. Any Investment in any person other than the Borrower or a Guarantor that is otherwise permitted by this Section 6.04 may be made through intermediate Investments in Subsidiaries that are not Loan Parties and such intermediate Investments shall be disregarded for purposes of determining the outstanding amount of Investments pursuant to any clause set forth above) . The amount of any Investment made other than in the form of cash or cash equivalents shall be the Fair Market Value thereof valued at the time such Investment was made);of the making thereof, and without giving effect to any subsequent write-downs or write-offs thereof.
Appears in 2 contracts
Samples: Credit Agreement (Dollar Tree Inc), Credit Agreement (Dollar Tree Inc)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) [Reserved];
(i) Investments by the Transactions (including payment Borrower or any Subsidiary in the Equity Interests of the purchase consideration under Borrower or any Subsidiary; (ii) intercompany loans from the Merger AgreementBorrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Borrower or any Subsidiary, provided that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write downs or write offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Closing Date by Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees after the Closing Date by Loan Parties of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to $5,000,000 (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b));
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 7.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 million 1,000,000 as of the end of the fiscal quarter immediately prior to the date of such loan or advance for which financial statements have been delivered pursuant to Section 4.05 or 6.04, as applicable, in an the aggregate principal amount at any time outstanding (calculated without regard to write-write downs or write-write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of the Holdcos (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Contracts permitted hereunder;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 7.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or contractually committed to on the Closing Date;
(i) Investments resulting from pledges and deposits under Sections 7.02(f), (g), (k), (r), (s) and (u);
(3j) other Investments by the Borrower or any Subsidiary if (i) the Availability, both after giving effect to such Investment and at all times during the 60 calendar days immediately prior to such Investment, in an amount each case on a Pro Forma Basis, would be, and was, greater than the Minimum Level 5 Availability or (ii)(A) the Availability, both after giving effect to such Investment and at all times during the 60 calendar days immediately prior to such Investment, in each case on a Pro Forma Basis, would be, and was, greater than the Minimum Level 3 Availability and (B) the Fixed Charge Coverage Ratio, on a Pro Forma Basis both before and after giving effect to such Investment, shall not to exceed the Available Amount as of the date such Investments are made; provided that be less than 1.1:1.0 and no Event of Default has shall have occurred and is be continuing immediately prior to making such Investment or would result therefrom;
(4k) Investments constituting Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Business Acquisitions;
(5l) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted loans between Subsidiaries that are not GuarantorsSubsidiary Loan Parties and Guarantees by such Subsidiaries to the extent permitted by Section 7.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower as a result of a foreclosure by the Borrower or any of its Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of an entity merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, to the extent permitted under this Section 7.04 and, in the case of any acquisition, merger, consolidation or amalgamation, in accordance with Section 7.05 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of the Holdcos, any Parent Entity, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of the Holdcos or any Parent Entity, so long as no cash is actually advanced by the Borrower or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of the Holdcos (or any Parent Entity);
(r) Investments in the Equity Interests of one or more newly formed persons that are received in consideration of the contribution by the Holdcos, the Borrower or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided that (bi) the fair market value (as determined in good faith by the Borrower) of such assets, determined on an arms’-length basis, so contributed pursuant to this paragraph (r) shall not in the aggregate principal amount exceed $1,000,000 and (ii) in respect of Indebtedness owing to each such contribution, a Responsible Officer of the Borrower shall certify (x) no Default or Event of Default shall have occurred and be continuing or would result from such contribution, (y) the Guarantors fair market value (as determined in good faith by the Borrower) of the assets so contributed and (z) that the requirements of paragraph (i) of this proviso remain satisfied;
(s) Investments consisting of Restricted Payments permitted under Section 7.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) Investments in Subsidiaries that are not Guarantors at any time outstanding; and (c) Loan Parties not to exceed $1,000,000 as of the aggregate principal amount end of Indebtedness the fiscal quarter immediately prior to the date of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors such Investment for which financial statements have been delivered pursuant to Section 6.04(31)4.05 or 6.04, may not exceed as applicable, in the greater of aggregate (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date plus any such Investment is made, plus an amount equal to any returns return of capital or sale proceeds actually received by the respective investors in respect of any such Investments theretofore made by them pursuant to this paragraph (which such amount shall not exceed u)), as valued at the amount fair market value (as determined in good faith by the Borrower) of such Investment (as determined above) at the time such Investment was is made;
(v) Investments consisting of the licensing or contribution of intellectual property licenses pursuant to joint marketing arrangements with other persons;
(w) Guarantees permitted under Section 7.01 (except to the extent such Guarantee is expressly subject to Section 7.04);
(x) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(y) Investments by the Borrower and its Subsidiaries, including loans and advances to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount (provided that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 7.06 for all purposes of this Agreement);
(z) [Reserved];
(aa) Investments received substantially contemporaneously in exchange for Equity Interests of the Holdcos or any Parent Entity; and
(bb) Investments in joint ventures not in excess of $5,000,000 in the aggregate (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this clause (bb)); provided that if any Investment pursuant to this clause (bb) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to Section 7.04(b) and shall cease to have been made pursuant to this clause (bb) for so long as such person continues to be a Subsidiary of the Borrower.
Appears in 2 contracts
Samples: Abl Credit Agreement (Constellium Holdco B.V.), Abl Credit Agreement (Constellium Holdco B.V.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interestscapital stock, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations ofto, or make or permit to exist any investment or any other interest in (each, a “Investment”)in, any other PersonPerson (all of the foregoing "Investments"), except the following except
(collectively, “i) Permitted Investments”):,
(1A) subordinated promissory notes issued by Great Lakes pursuant to the Transactions terms of the Receivables Agreement (including payment x) in respect of a portion of the purchase consideration price of Credit Card Receivables thereunder and (y) to evidence loans which may be made by the Borrower and CPS to Great Lakes thereunder to enable Great Lakes to pay operating expenses, provided that the aggregate outstanding amount of such loans in respect of such operating expenses shall not exceed $1,000,000 at any time, (B) Seller Notes (as defined in the Receivables Agreement) issued by Great Lakes pursuant to the terms of the Receivables Agreement in respect of a portion of the purchase price of Credit Card Receivables thereunder, and (C) all obligations, indebtedness and liabilities of the Borrower, CPS, Great Lakes and/or any Additional Seller (whether direct or indirect and whether contingent or otherwise) arising under, or in connection with, any of the Receivables Agreement Documents as amended in a manner which does not violate Section 6.10 of this Agreement,
(iii) advances by the Borrower to CPS and by CPS to the Borrower,
(iv) advances by any Guarantor (other than CPS) to the Borrower and advances by the Borrower to any Guarantor (other than CPS) in an aggregate annual amount for all Guarantors (other than CPS) of $1,125,000,
(v) other advances by the Borrower and CPS in the ordinary course of business in an aggregate amount not to exceed $100,000,
(vi) investments not in excess of an aggregate of $500,000 during the term of this Agreement in non-operating Subsidiaries of the Borrower (which Subsidiaries shall be required to become a Guarantor under the Merger this Agreement);,
(2vii) loans and advances to officers, directors, employees or consultants of any Parent Entity, made by the Borrower or any Restricted Subsidiary not Guarantor to exceed the Borrower and/or any other Guarantor pursuant to the Tax-Sharing Agreement,
(viii) open market, negotiated, or other purchases of the indebtedness of, claims against, or equity interests in any corporation whose primary business is in the department store industry or in a closely related industry up to (I) $15.0 million 75,000,000 in the aggregate for all such transactions if at the time of such investment either Level I Status, Level II Status or Level III Status exists or (II) $20,000,000 in the aggregate for all such transactions if at the time of such investment either Level IV Status or Level V Status exists, and
(ix) advances by the Borrower to NBGL in an aggregate principal amount at any one time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) exceeding $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);25,000,000.
Appears in 2 contracts
Samples: Revolving Credit and Guaranty Agreement (Carson Pirie Scott & Co /Il/), Revolving Credit and Guaranty Agreement (Carson Pirie Scott & Co /Il/)
Investments, Loans and Advances. Purchase, hold or acquire Purchase (including pursuant to any merger, consolidation merger or amalgamation with a Person that is not a Wholly Owned Relevant Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Loan Parties, which cash management operations shall not extend to any other Person) to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), in any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) Investments (including, but not limited to, Investments in Equity Interests, intercompany loans, and Guarantees of Indebtedness otherwise expressly permitted hereunder) after the Transactions Closing Date by (including payment i) Loan Parties in Subsidiaries that are not Loan Parties in an aggregate amount (valued at the time of the purchase consideration under making thereof and without giving effect to any write-downs or write-offs thereof) not to exceed an amount equal to the Merger Agreement)sum of, without duplication, the greater of $50.0 million and 2.0% of Consolidated Total Assets plus any return of capital actually received by the respective investors in respect of investments previously made by them pursuant to this clause 6.04(a)(i) plus, an amount equal to the fair market value of any assets or property that is contributed or transferred from any Subsidiary that is not a Loan Party to any Loan Party from and after the Closing Date, (ii) Loan Parties in other Loan Parties, (iii) by Subsidiaries that are not Loan Parties in other Subsidiaries that are not Loan Parties and (iv) by Subsidiaries that are not Loan Parties in Loan Parties;
(2b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by the Borrower or any of its Relevant Subsidiaries of noncash consideration for the sale of assets permitted under Section 6.05;
(d) (i) loans and advances to officersemployees of the Borrower, directorsany of its Relevant Subsidiaries or, to the extent such employees or consultants are providing services rendered on behalf of the Loan Parties, any Parent Entity, Company in the Borrower or any Restricted Subsidiary ordinary course of business not to exceed the greater of $15.0 10.0 million and 0.25% of Consolidated Total Assets in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after thereof) and (ii) advances of payroll payments and expenses to employees of the date made)Borrower, any of its Relevant Subsidiaries or, to the extent such employees are providing services on behalf of the Loan Parties, any Parent Company in the ordinary course of business;
(3e) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(f) Swap Agreements permitted pursuant to Section 6.13;
(g) (i) Investments in an amount not to exceed existing on the Available Amount Closing Date and/or Investments contemplated as of the date Closing Date and in each case, set forth on Schedule 6.04, and (ii) Investments of cash or cash equivalents in the Empire Joint Venture, including through Empire JV HoldCo, and, in each case under clauses (i) and (ii), additional Investments in respect of such Investments are madeexisting or contemplated Investments; provided that any such Investments of cash or cash equivalents in the Empire Joint Venture, including through Empire JV HoldCo, shall be permitted only if immediately before and after giving effect to such Investment, no Event of Default has occurred and is continuing immediately prior and Availability on a Pro Forma Basis after giving effect to making such Investment or would result therefromshall be at least $125,000,000;
(4h) Permitted Acquisitions Investments resulting from pledges and pre-existing Investments held by Persons acquired deposits referred to in Permitted Acquisitions or acquired in connection with Permitted AcquisitionsSection 6.02(f) and (g);
(5i) intercompany so long as immediately before and after giving effect to such Investment no Default or Event of Default has occurred and is continuing, other Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower or any of its Relevant Subsidiaries in an aggregate amount (valued at the time of the making thereof, and the Guarantors in Restricted Subsidiaries that are without giving effect to any write-downs or write-offs thereof) not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 250.0 million and (ii) 0.504.0 % of Consolidated Total Assets as of the date any such Investment is made, (plus an amount equal to any returns of capital or sale proceeds actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (i));
(j) Investments constituting Permitted Business Acquisitions, so long as any Person acquired in connection with such Permitted Business Acquisitions and each of such Person’s Subsidiaries becomes a Subsidiary Loan Party to the extent required by Section 5.10;
(k) additional Investments to the extent (which such i) made with proceeds of Equity Interests of the Borrower (or paid for with Equity Interests of a direct or indirect parent of the Borrower), (ii) in an amount shall not exceed exceeding the amount of such Investment cash contributed as common equity to the Borrower by any direct or indirect parent entity thereof or (iii) in an amount not exceeding the fair market value of the Equity Interests issued by Crestwood Equity Partners to finance, or as determined aboveconsideration for, any Group Acquisition, which amount shall be available pursuant to this clause (iii) commencing at the time all property acquired by Crestwood Equity Partners in such Investment was made)Group Acquisition is contributed to the Borrower;
(l) Investments (including, but not limited to, Investments in Equity Interests, intercompany loans, and Guarantees of Indebtedness otherwise expressly permitted hereunder) after the Closing Date by Relevant Subsidiaries that are not Loan Parties in any Loan Party or other Subsidiaries;
(m) the Transactions;
(n) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business;
Appears in 2 contracts
Samples: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)
Investments, Loans and Advances. Purchase, hold (i) Purchase or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofof any other person, (ii) make or permit to exist any loans or advances to or Guarantees of the obligations ofIndebtedness of any other person (other than loans or advances in respect of (A) intercompany current liabilities incurred in connection with the cash management operations of the Borrower and the Subsidiaries and (B) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business or consistent with industry practices), or make (iii) purchase or permit to exist any investment otherwise acquire, in one transaction or any other interest in a series of related transactions, (eachx) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, a line of business or division of such person (each of the foregoing, an “Investment”), except:
(a) the Transactions;
(i) Investments by the Borrower or any other PersonSubsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary of Indebtedness otherwise permitted hereunder of the Borrower or any Subsidiary; provided, except that as at any date of determination, the following aggregate outstanding amount of (collectivelyA) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to subclause (i) in Subsidiaries that are not Subsidiary Loan Parties, “Permitted Investments”):
plus (B) net outstanding intercompany loans made after the Closing Date by the Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (ii), plus (C) outstanding Guarantees by the Loan Parties of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (iii), plus (D) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties in Subsidiaries that are not Loan Parties pursuant to Section 6.04(u), shall not exceed the sum of (X) the greater of (1) $10,000,000 and (2) 4.25% of the Transactions Consolidated Total Assets as at the end of the then most recently ended Test Period plus (Y) an amount equal to any returns (including payment dividends, interest, distributions, returns of the purchase consideration under the Merger Agreement)principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the Disposition of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed the greater of $15.0 million 3,000,000 and 1.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after thereof), (ii) in respect of payroll payments and expenses in the date made)ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(3f) Investments (i) accounts receivable, security deposits and prepayments arising, trade credit granted and Customer Development Agreements (and Customer Notes issued thereunder) (x) entered into in the ordinary course of business or (y) limited to an amount not to exceed $3,000,000 outstanding at any one time and (ii) any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the Available Amount extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Hedging Agreements entered into for non-speculative purposes;
(h) Investments existing on, or contractually committed as of, the Closing Date consisting of intercompany loans or as set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (o), (r), (s), (ee) and (ll);
(j) other Investments by the Borrower or any Subsidiary in an aggregate outstanding amount (valued at the time of the date such Investments are made; provided that making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the sum of (X) the greater of $10,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, plus (Y) so long as no Event of Default has shall have occurred and is continuing be continuing, any portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(j)(Y) in a written notice of a Responsible Officer thereof, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower election and the Restricted Subsidiaries amount thereof elected to be so applied, and plus (including intercompany Indebtedness); provided that the sum of (aZ) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns (including dividends, interest, distributions, returns of capital or sale proceeds principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investments Investment pursuant to clause (which such amount shall not exceed the amount of such X); provided, that if any Investment (as determined above) at the time such Investment was made);pursuant to this
Appears in 2 contracts
Samples: Incremental Assumption Agreement (AP Gaming Holdco, Inc.), Incremental Assumption Agreement (AP Gaming Holdco, Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Person, except the following (collectively, “Permitted Investments”):
(1) the Transactions (including payment of the purchase consideration under the Merger Agreement)Transactions;
(2) loans and advances to officers, directors, employees or consultants of any Parent Entity, the any Borrower or any Restricted Subsidiary not to exceed $15.0 million in an aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom[reserved];
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions[reserved];
(5) intercompany Investments among the any Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the any Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the any Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the any Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), outstanding may not exceed the greater of (i) $25.0 50.0 million and (ii) 0.50% the Comparable Percentage of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);
Appears in 2 contracts
Samples: Loan Agreement (Ulta Beauty, Inc.), Loan Agreement (Ulta Beauty, Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any mergercapital stock, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interestscomparable ownership interests, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations ofto, or make or permit to exist any investment or any other interest in (each, a “Investment”)in, any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) loans, advances, capital contributions, guarantees and other investments existing on the Transactions (including payment of the purchase consideration under the Merger Agreement);
(2) loans date hereof and advances to officersloans, directorsadvances, employees or consultants of any Parent Entitycapital contributions, guarantees and other investments by the Borrower or any Restricted Subsidiary in the capital stock or comparable ownership interests of any Subsidiary, including by means of contributions by any Subsidiary of Hotel Properties; provided that investments made in Unrestricted Subsidiaries following the Effective Date shall not to exceed $15.0 million in an aggregate principal amount of $75,000,000 at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made)outstanding;
(3b) Investments loans, advances, capital contributions, guarantees and other investments by the Borrower to Restricted Subsidiaries or by Subsidiaries to the Borrower or any Restricted Subsidiary, in an amount not each case to exceed the Available Amount extent no Default or Event of Default would result after giving effect thereto;
(c) Permitted Liquid Investments;
(d) so long as of the date such Investments are made; provided that no Default or Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions continuing, loans and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) advances by the Borrower and the Guarantors in its Restricted Subsidiaries that are not Guarantors; (b) to their employees, officers, and directors in the ordinary course of business in an aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors outstanding at any time outstandingnot in excess of $2,000,000;
(e) other investments, capital contributions, guarantees, loans and advances made in connection with hospitality-related business activities and ancillary business activities reasonably related thereto so long as no Default or Event of Default has occurred and is continuing, or would exist after giving effect thereto, other than investments in Unrestricted Subsidiaries (which shall be governed by subsection (a) above);
(f) so long as no Default or Event of Default has occurred and is continuing, repurchases of the outstanding stock of the Borrower; and
(g) other investments, capital contributions, guarantees, loans and (c) the advances not otherwise permitted pursuant to this Section 6.04 in an aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors outstanding at any time outstanding, together with any Investments made not in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater excess of $5,000,000. For purposes of clauses (ia) $25.0 million and (iig) 0.50% of Consolidated Total Assets as this Section 6.04, calculations shall be on the basis of amounts actually invested, net of any return on investment or return of capital with respect to such investments, and without regard to any write-up or write-down of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount value of such Investment (as determined above) at the time such Investment was made);investments.
Appears in 2 contracts
Samples: Senior Unsecured Revolving Credit Agreement, Senior Unsecured Revolving Credit Agreement (Choice Hotels International Inc /De)
Investments, Loans and Advances. Purchase, hold (i) Purchase or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofof any other person, (ii) make or permit to exist any loans or advances to or Guarantees of the obligations ofIndebtedness of any other person (other than loans or advances in respect of (A) intercompany current liabilities incurred in connection with the cash management operations of the Borrower and the Subsidiaries and (B) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business or consistent with industry practices), or make (iii) purchase or permit to exist any investment otherwise acquire, in one transaction or any other interest in a series of related transactions, (eachx) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, a line of business or division of such person (each of the foregoing, an “Investment”), except:
(a) Investments made pursuant to the Purchase Agreement or in connection with the Transactions;
(b) after giving effect to the applicable Investments, (i) Investments by the Borrower or any other PersonSubsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary of Indebtedness otherwise permitted hereunder of the Borrower or any Subsidiary; provided, except that as at any date of determination, the following aggregate amount of (collectivelyA) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to subclause (i) in Subsidiaries that are not Subsidiary Loan Parties, “Permitted Investments”):
plus (B) net outstanding intercompany loans made after the Closing Date by the Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (ii), plus (C) outstanding Guarantees by the Loan Parties of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (iii) shall not exceed the sum of (X) the greater of (1) $5,000,000 and (2) 0.046 times EBITDAR calculated on a Pro Forma Basis for the Transactions then most recently ended Test Period plus (Y) an amount equal to any returns (including payment dividends, interest, distributions, returns of the purchase consideration under the Merger Agreement)principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed the greater of $15.0 million 1,000,000 and 0.009 times EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period in an the aggregate principal amount at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings or any Parent Entity solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Hedging Agreements entered into for non-speculative purposes;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (o), (r), (s), (ee), (ll) and (nn);
(j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (aX) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million 5,000,000 and (ii) 0.50% of Consolidated Total Assets as of 0.046 times EBITDAR calculated on a Pro Forma Basis for the date any such Investment is madethen most recently ended Test Period, plus (Y) an amount equal to any returns (including dividends, interest, distributions, returns of capital or sale proceeds principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investments Investment pursuant to clause (X); provided, that if any Investment pursuant to this Section 6.04(j) is made in any person that was not a Subsidiary on the date on which such amount Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(j);
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Subsidiaries that are not Loan Parties and Guarantees by Subsidiaries that are not Loan Parties permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower or a Subsidiary as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of a person merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent such acquisition, merger or consolidation is permitted under this Section 6.04, (ii) in the case of any acquisition, merger or consolidation, in accordance with Section 6.05 and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capitalized Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of Holdings or any Parent Entity;
(r) Investments in the Equity Interests of one or more newly-formed persons that are received in consideration of the contribution by Holdings, the Borrower or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided, that (i) the fair market value of such assets, determined in good faith by the Borrower, so contributed pursuant to this clause (r) shall not in the aggregate exceed $5,000,000 and (ii) in respect of each such contribution, a Responsible Officer of the Borrower shall certify, in a form to be agreed upon by the Borrower and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (y) the fair market value (as determined in good faith by the Borrower) of the assets so contributed and (z) that the requirements of clause (i) of this proviso remain satisfied;
(s) Investments consisting of Restricted Payments permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;
(u) Investments in Subsidiaries that are not Loan Parties after giving effect to the applicable Investments in an aggregate amount (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) not to exceed the sum of the greater of $5,000,000 and 0.046 times EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period in the aggregate plus (y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of Investments theretofore made pursuant to this Section 6.04(u);
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to this Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(x) Investments by the Borrower and the Subsidiaries, including loans to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount (provided, that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Investments consisting of the licensing or contribution of Intellectual Property pursuant to joint marketing arrangements with other persons;
(z) to the extent constituting Investments, purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of Intellectual Property in each case in the ordinary course of business;
(aa) Investments received substantially contemporaneously in exchange for Equity Interests of the Borrower, Holdings or any Parent Entity;
(bb) Investments in joint ventures in an aggregate amount not to exceed the sum of (X) the greater of $5,000,000 and 0.046 times EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period, plus (Y) an aggregate amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received by the respective investor in respect of investments theretofore made by it pursuant to this clause (bb); provided, that if any Investment pursuant to this clause (bb) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as determined abovesuch person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(bb);
(cc) Investments in a Similar Business in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the sum of (X) the greater of $5,000,000 and 0.046 times EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period plus (Y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment; provided, that if any Investment pursuant to this clause (cc) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(cc);
(dd) Investments in any Unrestricted Subsidiaries in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the sum of (X) the greater of $2,000,000 and 0.018 times EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period plus (Y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment; provided, that if any Investment pursuant to this Section 6.04(dd) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(dd); and
(ee) other Investments; provided, that at the time such Investment was is made, the Payment Conditions are satisfied; The amount of Investments that may be made at any time pursuant to Section 6.04(b);, 6.04(j) or 6.04(cc) (such Sections, the “Related Sections”) may, at the election of the Borrower, be increased by the amount of Investments that could be made at such time under the other Related Sections; provided, that the amount of each such increase in respect of one Related Section shall be treated as having been used under one of the other Related Sections. Any Investment in any person other than the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Section 6.04 may be made through intermediate Investments in Subsidiaries that are not Loan Parties and such intermediate Investments shall be disregarded for purposes of determining the outstanding amount of Investments pursuant to any clause set forth above. The amount of any Investment made other than in the form of cash or cash equivalents shall be the fair market value thereof (as determined by the Borrower in good faith) valued at the time of the making thereof, and without giving effect to any write-downs or write- offs thereof.
Appears in 2 contracts
Samples: Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.), Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to Make any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest Investment in (each, a “Investment”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) (i) Investments in Loan Parties, (ii) Investments by Restricted Subsidiaries that are not Loan Parties in other Restricted Subsidiaries that are not Loan Parties and (iii) Investments existing on the Transactions Fourth Amendment Effective Date that are described on Schedule 6.04(a) and extensions, renewals and (including payment in the case of Investments in the purchase consideration under form of loans or advances) refinancings thereof so long as no such extension, renewal or refinancing results in an increase in the Merger Agreement)principal or other invested amount thereof except for, in the case of loans or advances, by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such extension, renewal or refinancing and by an amount equal to any existing commitments unutilized thereunder;
(2b) (i) Investments by Loan Parties in Restricted Subsidiaries that are not Loan Parties up to an amount which, when added to all such Investments then outstanding, would not exceed the greater of $75,000,000 and 3.75% of Consolidated Total Assets and (ii) Investments in Unrestricted Subsidiaries up to an amount which, when added to all such Investments then outstanding would not exceed the greater of $75,000,000 and 3.75% of Consolidated Total Assets; provided that, in each case, immediately before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(c) Permitted Investments;
(d) [reserved];
(e) any guarantees by the Administrative Borrower and the Restricted Subsidiaries of the operating or commercial obligations (to the extent not constituting Indebtedness) of the Administrative Borrower or any Restricted Subsidiary incurred in the ordinary course of business;
(f) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the granting of trade credit in the ordinary course of business, and investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(g) Investments by the Administrative Borrower and any Restricted Subsidiary in Hedging Agreements permitted under clause (h) of Section 6.01;
(h) the Administrative Borrower or any other Loan Party may acquire all or substantially all the assets of a Person or line of business of such Person, or not less than 100% of the Equity Interests (other than directors’ qualifying shares) of a Person (referred to herein as the “Acquired Entity”); provided that (i) the Acquired Entity shall be in a Permitted Business and (ii) (A) (x) both immediately before and after the time on which the definitive agreements for such Investment are entered into and after giving pro forma effect to such Investment, no Default or Event of Default shall have occurred and be continuing or result therefrom and (y) at the time of such transaction, no Default or Event of Default shall have occurred and be continuing or result therefrom under paragraph (b), (c), (g) or (h) of Article VII; (B) both immediately before and after the time on which the definitive agreements for such Investment are entered into and after giving pro forma effect to such Investment, the Administrative Borrower must be in Financial Covenant Compliance; (C) at the time of such transaction the Administrative Borrower or any Restricted Subsidiary shall have delivered to the Administrative Agent a certificate of a Responsible Officer certifying as to the foregoing and containing reasonably detailed calculations in support thereof, in form reasonably satisfactory to the Administrative Agent; and (D) the Administrative Borrower and any Restricted Subsidiary shall comply, and shall cause the Acquired Entity to comply, with the applicable provisions of Section 5.13 and the Security Documents within the periods provided for in Section 5.13 (any acquisition of an Acquired Entity meeting all the criteria of this Section 6.04(h) being referred to herein as a “Permitted Acquisition”); provided that the aggregate amount of Investments made by Loan Parties pursuant to this Section 6.04(h) in assets that are not (or do not become) owned by a Loan Party or in Equity Interests in Persons that do not become Loan Parties upon consummation of such Permitted Acquisition shall not exceed the greater of $150,000,000 and 7.50% of Consolidated Total Assets;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business, (ii) Investments by the Administrative Borrower and the Restricted Subsidiaries in prepaid expenses, negotiable instruments held for collection, lease, worker’s compensation, performance and other similar deposits provided to third parties in the ordinary course of business and insurance claim receivables and (iii) the Transactions;
(j) [reserved];
(k) to the extent not prohibited by applicable law, loans and advances to officers, directors, managers, consultants and employees of the Administrative Borrower or consultants its Subsidiaries in an aggregate amount not to exceed $1,000,000 at any time outstanding for travel, entertainment, relocation and other business purposes in the ordinary course of business;
(l) Investments in the form of seller “take-back” notes and other non-cash consideration in connection with a Disposition permitted by Section 6.05;
(m) so long as (i) any Parent EntityFarm Credit Lender is a Lender or Voting Participant hereunder and (ii) such Farm Credit Lender has notified the Administrative Borrower that it is eligible to receive patronage distributions directly from such Farm Credit Lender or one of its Affiliates on account of its portion of a Term Loan made (or participated in) by such Farm Credit Lender hereunder, Investments made by the Administrative Borrower as a condition to receiving such patronage distributions in the form of an acquisition of equity in such Farm Credit Lender or one of its Affiliates in such amounts and at such times as such Farm Credit Lender may require in accordance with such Farm Credit Lender’s or its Affiliate’s Organizational Documents and capital plan (as each may be amended from time to time); provided that the maximum amount of equity that the Administrative Borrower shall be required to acquire in such Farm Credit Lender or one of its Affiliates in connection with the portion of such Term Loan made by such Farm Credit Lender hereunder may not exceed the maximum amount permitted by the relevant Organizational Documents and the capital plan of such Farm Credit Lender (x) as in effect on the Original Closing Date or (y) in the case of a Farm Credit Lender that becomes a Lender or Voting Participant as a result of an assignment or participation, in either case pursuant to Section 9.04, at the time of the closing of such assignment or participation;
(n) in addition to Investments permitted by paragraphs (a) through (m) above, additional Investments by the Administrative Borrower or any Restricted Subsidiary so long as (i) the amount invested pursuant to this paragraph (n) does not to exceed $15.0 million in an aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not equal to exceed the Available Amount at the time such amount is invested (ii) both immediately before and after the time on which the definitive agreements for such Investment are entered into, no Default or Event of Default shall have occurred and be continuing and (iii) other than with regard to Investments made with proceeds arising from clauses (i)(x) or (y) of the definition of Available Amount, as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making on which the definitive agreements for such Investment are entered into, the Total Leverage Ratio (after giving pro forma effect to such Investment) shall be less than or would result therefromequal to 3.50:1.00;
(4o) Permitted Acquisitions and pre-existing in addition to Investments held permitted by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of paragraphs (a) through (n) above, additional Investments by the aggregate fair market value Administrative Borrower or any Restricted Subsidiary from Available Cash (or amounts that would otherwise have constituted Available Cash if not reserved) to the extent the conditions set forth in Section 6.06(a)(ii) are satisfied at the time of such Investment; and
(p) in addition to Investments permitted by paragraphs (a) through (o) above, other Investments by the Administrative Borrower or any Restricted Subsidiary up to an amount which, when added to all such Investments (other than intercompany Indebtedness and Guarantees of Indebtednessmade pursuant to this Section 6.04(p) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time then outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may would not exceed the greater of (i) $25.0 million 150,000,000 and (ii) 0.50an amount equal to 7.50% of Consolidated Total Assets Assets. For purposes of determining compliance with this Section 6.04: (i) in the event that an investment (or any portion thereof) meets the criteria of more than one of the categories of investments permitted in this Section 6.04, the Administrative Borrower and a Restricted Subsidiary, as the case may be, in its sole discretion, may classify at the time of investment such investment (or any portion thereof) and will only be required to include such investment in one of the categories of investments permitted in this Section 6.04; (ii) at the time of incurrence the Administrative Borrower or a Restricted Subsidiary, as the case may be, in its sole discretion, may divide and classify an investment in more than one of the categories of investments permitted in this Section 6.04; (iii) Investments which are capital contributions or purchases of Equity Interests or are purchases of assets (other than Equity Interests) shall be valued at the amount (or, in the case of any Investment made with property other than cash, the fair market value of such property as determined by the Administrative Borrower in good faith) actually contributed or paid (including any assumption of Indebtedness) to purchase such Equity Interests or other assets as of the date any of such Investment is madecontribution or payment less, plus an amount equal to any returns in the case of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount contributions and Equity Interests, returns on and of such Investment (as determined aboveother than Investments under clause (n) of this Section 6.04 made using the Available Amount); and (iv) Investments which are loans, advances or extensions of credit shall be valued at the time principal amount of such loan, advance or extension of credit outstanding as of the date of determination. Accrual of interest or dividends, the accretion of accreted value and the payment of interest or dividends in the form of additional Investments will not be deemed to be the making of an Investment was made);for purposes of this Section 6.04.
Appears in 2 contracts
Samples: Credit Agreement (Enviva Inc.), Credit Agreement (Enviva Inc.)
Investments, Loans and Advances. Purchase, hold or acquire Purchase (including pursuant to any merger, consolidation merger or amalgamation with a Person that is not a Wholly Owned Relevant Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Loan Parties, which cash management operations shall not extend to any other Person) to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), in any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) Investments (including, but not limited to, Investments in Equity Interests, intercompany loans, and Guarantees of Indebtedness otherwise expressly permitted hereunder) after the Transactions Closing Date by (including payment i) Loan Parties in Subsidiaries that are not Loan Parties in an aggregate amount (valued at the time of the purchase consideration under making thereof and without giving effect to any write-downs or write-offs thereof) not to exceed an amount equal to the Merger Agreement)sum of, without duplication, the greater of $50.0 million and 2.0% of Consolidated Total Assets plus any return of capital actually received by the respective investors in respect of investments previously made by them pursuant to this clause 6.04(a)(i) plus, an amount equal to the fair market value of any assets or property that is contributed or transferred from any Subsidiary that is not a Loan Party to any Loan Party from and after the Closing Date, (ii) Loan Parties in other Loan Parties, (iii) by Subsidiaries that are not Loan Parties in other Subsidiaries that are not Loan Parties and (iv) by Subsidiaries that are not Loan Parties in Loan Parties;
(2b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by the Borrower or any of its Relevant Subsidiaries of noncash consideration for the sale of assets permitted under Section 6.05;
(d) (i) loans and advances to officersemployees of the Borrower, directorsany of its Relevant Subsidiaries or, to the extent such employees or consultants are providing services rendered on behalf of the Loan Parties, any Parent Entity, Company in the Borrower or any Restricted Subsidiary ordinary course of business not to exceed the greater of $15.0 10.0 million and 0.25% of Consolidated Total Assets in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof) and (ii) advances of payroll payments and expenses to employees of the Borrower, any of its Relevant Subsidiaries or, to the extent such employees are providing services on behalf of the Loan Parties, any Parent Company in the ordinary course of business;
(e) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(f) Swap Agreements permitted pursuant to Section 6.13;
(g) Investments existing on the Closing Date and/or Investments contemplated as of the Closing Date and in each case, set forth on Schedule 6.04, and, in each case additional Investments in respect of such existing or contemplated Investments;
(h) Investments resulting from pledges and deposits referred to in Section 6.02(f) and (g);
(3i) Investments in an amount not so long as immediately before and after giving effect to exceed the Available Amount as of the date such Investments are made; provided that Investment no Default or Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing continuing, other Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower or any of its Relevant Subsidiaries in an aggregate amount (valued at the time of the making thereof, and the Guarantors in Restricted Subsidiaries that are without giving effect to any write-downs or write-offs thereof) not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 250.0 million and (ii) 0.504.0 % of Consolidated Total Assets as of the date any such Investment is made, (plus an amount equal to any returns of capital or sale proceeds actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (i));
(j) Investments constituting Permitted Business Acquisitions, so long as any Person acquired in connection with such Permitted Business Acquisitions and each of such Person’s Subsidiaries becomes a Subsidiary Loan Party to the extent required by Section 5.10;
(k) additional Investments to the extent (which such i) made with proceeds of Equity Interests of the Borrower (or paid for with Equity Interests of a direct or indirect parent of the Borrower), (ii) in an amount shall not exceed exceeding the amount of such Investment cash contributed as common equity to the Borrower by any direct or indirect parent entity thereof or (iii) in an amount not exceeding the fair market value of the Equity Interests issued by Crestwood Equity Partners to finance, or as determined aboveconsideration for, any Group Acquisition, which amount shall be available pursuant to this clause (iii) commencing at the time all property acquired by Crestwood Equity Partners in such Investment was made)Group Acquisition is contributed to the Borrower;
(l) Investments (including, but not limited to, Investments in Equity Interests, intercompany loans, and Guarantees of Indebtedness otherwise expressly permitted hereunder) after the Closing Date by Relevant Subsidiaries that are not Loan Parties in any Loan Party or other Subsidiaries;
(m) the Transactions;
(n) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business;
Appears in 2 contracts
Samples: Credit Agreement (Crestwood Equity Partners LP), Credit Agreement (Crestwood Midstream Partners LP)
Investments, Loans and Advances. Purchase, hold (i) Purchase or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofof any other person, (ii) make or permit to exist any loans or advances to or Guarantees of the obligations ofIndebtedness of any other person (other than loans or advances in respect of (A) intercompany current liabilities incurred in connection with the cash management operations of the Borrower and the Subsidiaries and (B) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business or consistent with industry practices), or make (iii) purchase or permit to exist any investment otherwise acquire, in one transaction or any other interest in a series of related transactions, (eachx) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, a line of business or division of such person (each of the foregoing, an “Investment”), except:
(a) the Transactions;
(i) Investments by the Borrower or any other PersonSubsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary of Indebtedness otherwise permitted hereunder of the Borrower or any Subsidiary; provided, except that as at any date of determination, the following aggregate outstanding amount of (collectivelyA) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to subclause (i) in Subsidiaries that are not Subsidiary Loan Parties, “Permitted Investments”):
plus (B) net outstanding intercompany loans made after the Closing Date by the Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (ii), plus (C) outstanding Guarantees by the Loan Parties of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (iii) shall not exceed the sum of (X) the greater of (1) $30,000,000 and (2) 4.25% of the Transactions Consolidated Total Assets as at the end of the then most recently ended Test Period plus (Y) an amount equal to any returns (including payment dividends, interest, distributions, returns of the purchase consideration under the Merger Agreement)principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the Disposition of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed the greater of $15.0 million 5,000,000 and 1.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after thereof), (ii) in respect of payroll payments and expenses in the date made)ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(3f) Investments (i) accounts receivable, security deposits and prepayments arising, trade credit granted and Customer Development Agreements (and Customer Notes issued thereunder) (x) entered into in the ordinary course of business or (y) limited to an amount not to exceed $5,000,000 outstanding at any one time and (ii) any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the Available Amount extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Hedging Agreements entered into for non-speculative purposes;
(h) Investments existing on, or contractually committed as of, the Closing Date consisting of intercompany loans or as set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (o), (r), (s), (ee) and (ll);
(j) other Investments by the Borrower or any Subsidiary in an aggregate outstanding amount (valued at the time of the date such Investments are made; provided that making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the sum of (X) the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, plus (Y) so long as no Event of Default has shall have occurred and be continuing, any portion of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(j)(Y) which such election shall (unless such Investment is continuing made pursuant to clause (a) of the definition of “Cumulative Credit”) be set forth in a written notice of a Responsible Officer thereof, which notice shall set forth calculations in reasonable detail the amount of Cumulative Credit immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower election and the Restricted Subsidiaries amount thereof elected to be so applied, and plus (including intercompany Indebtedness); provided that the sum of (aZ) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns (including dividends, interest, distributions, returns of capital or sale proceeds principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investments Investment pursuant to clause (X); provided, that if any Investment pursuant to this Section 6.04(j) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(j);
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Subsidiaries that are not Loan Parties and Guarantees by Subsidiaries that are not Loan Parties permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower or a Subsidiary as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of a person merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent such acquisition, merger or consolidation is permitted under this Section 6.04, (ii) in the case of any acquisition, merger or consolidation, in accordance with Section 6.05 and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capitalized Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of the Borrower, Holdings or any Parent Entity; provided, that the issuance of such Equity Interests are not included in any determination of the Cumulative Credit;
(r) [Reserved];
(s) Investments consisting of Restricted Payments permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;
(u) Investments in Subsidiaries that are not Loan Parties after giving effect to the applicable Investments in an aggregate outstanding amount shall (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) not to exceed the sum of (x) the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period in the aggregate plus (y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of Investments theretofore made pursuant to this Section 6.04(u);
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to this Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(x) Investments by the Borrower and its Subsidiaries, including loans to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount (provided, that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Investments consisting of Receivable Assets or arising as a result of Permitted Receivables Financings;
(z) Investments consisting of the licensing or contribution of Intellectual Property pursuant to joint marketing or other arrangements with other persons;
(aa) to the extent constituting Investments, purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of Intellectual Property in each case in the ordinary course of business;
(bb) Investments received substantially contemporaneously in exchange for Equity Interests of the Borrower, Holdings or any Parent Entity; provided, that the issuance of such Equity Interests are not included in any determination of the Cumulative Credit;
(cc) Guarantees of Indebtedness in respect of ordinary course customer financing lines of credit;
(dd) Investments in joint ventures in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the sum of (X) the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period plus (Y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment; provided, that if any Investment pursuant to this clause (dd) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(dd); and
(ee) Investments in Similar Businesses in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the sum of (X) the greater of $30,000,000 and 5% of the Consolidated Total Assets as at the end of the then most recently ended Test Period plus (Y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment; provided, that if any Investment pursuant to this clause (ee) is made in any person that was not a Subsidiary on the date on which such Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Loan Party) and not in reliance on this Section 6.04(ee). The amount of Investments that may be made at any time pursuant to Section 6.04(b), 6.04(j) or 6.04(ee) (such Sections, the “Related Sections”) may, at the election of the Borrower, be increased by the amount of Investments that could be made at such time under the other Related Section; provided, that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section. Any Investment in any person other than the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Section 6.04 may be made through intermediate Investments in Subsidiaries that are not Loan Parties and such intermediate Investments shall be disregarded for purposes of determining the outstanding amount of Investments pursuant to any clause set forth above. The amount of any Investment made other than in the form of cash or cash equivalents shall be the fair market value thereof (as determined aboveby the Borrower in good faith) valued at the time such Investment was made);of the making thereof, and without giving effect to any subsequent write-downs or write-offs thereof.
Appears in 2 contracts
Samples: Incremental Assumption Agreement (PlayAGS, Inc.), Incremental Assumption Agreement (AP Gaming Holdco, Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to Make any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest Investment in (each, a “Investment”), any other Person, except:
(a) (i) Investments in Loan Parties, (ii) Investments by Restricted Subsidiaries that are not Loan Parties in other Restricted Subsidiaries that are not Loan Parties and (iii) Investments existing on the Fourth Amendment Effective Date that are described on Schedule 6.04(a) and extensions, renewals and (in the case of Investments in the form of loans or advances) refinancings thereof so long as no such extension, renewal or refinancing results in an increase in the principal or other invested amount thereof except for, in the following case of loans or advances, by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such extension, renewal or refinancing and by an amount equal to any existing commitments unutilized thereunder;
(collectivelyb) (i) Investments by Loan Parties in Restricted Subsidiaries that are not Loan Parties up to an amount which, when added to all such Investments then outstanding, would not exceed the greater of $10,000,000 and 2.50% of Consolidated Total Assets and (ii) Investments in Unrestricted Subsidiaries up to an amount which, when added to all such Investments then outstanding would not exceed the greater of $10,000,000 and 2.50% of Consolidated Total Assets; provided that, in each case, immediately before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(c) Permitted Investments;
(d) [reserved];
(e) any guarantees by the Administrative Borrower and the Restricted Subsidiaries of the operating or commercial obligations (to the extent not constituting Indebtedness) of the Administrative Borrower or any Restricted Subsidiary incurred in the ordinary course of business;
(f) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the granting of trade credit in the ordinary course of business, and investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(g) Investments by the Administrative Borrower and any Restricted Subsidiary in Hedging Agreements permitted under clause (h) of Section 6.01;
(h) the Administrative Borrower or any other Loan Party may acquire all or substantially all the assets of a Person or line of business of such Person, or not less than 100% of the Equity Interests (other than directors’ qualifying shares) of a Person (referred to herein as the “Acquired Entity”); provided that (i) the Acquired Entity shall be in a Permitted Business and (ii) (A) (x) both immediately before and after the time on which the definitive agreements for such Investment are entered into and after giving pro forma effect to such Investment, no Default or Event of Default shall have occurred and be continuing or result therefrom and (y) at the time of such transaction, no Default or Event of Default shall have occurred and be continuing or result therefrom under paragraph (b), (c), (g) or (h) of Article VII; (B) both immediately before and after the time on which the definitive agreements for such Investment are entered into and after giving pro forma effect to such Investment, the Administrative Borrower must be in Financial Covenant Compliance; (C) at the time of such transaction the Administrative Borrower or any Restricted Subsidiary shall have delivered to the Administrative Agent a certificate of a Responsible Officer certifying as to the foregoing and containing reasonably detailed calculations in support thereof, in form reasonably satisfactory to the Administrative Agent; and (D) the Administrative Borrower and any Restricted Subsidiary shall comply, and shall cause the Acquired Entity to comply, with the applicable provisions of Section 5.13 and the Security Documents within the periods provided for in Section 5.13 (any acquisition of an Acquired Entity meeting all the criteria of this Section 6.04(h) being referred to herein as a “Permitted InvestmentsAcquisition”):); provided that the aggregate amount of Investments made by Loan Parties pursuant to this Section 6.04(h) in assets that are not (or do not become) owned by a Loan Party or in Equity Interests in Persons that do not become Loan Parties upon consummation of such Permitted Acquisition shall not exceed the greater of $35,000,000 and 6.00% of Consolidated Total Assets;
(1i) 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, (ii) Investments by the Administrative Borrower and the Restricted Subsidiaries in prepaid expenses, negotiable instruments held for collection, lease, worker’s compensation, performance and other similar deposits provided to third parties in the ordinary course of business and insurance claim receivables and (iii) the Transactions Transactions;
(including j) any Drop-Down Acquisition or Material Subsequent Facility Payment; provided that (i) such Drop-Down Acquisition or Material Subsequent Facility Payment and the material terms and conditions thereof have been approved by the Conflicts Committee; (ii) (A) at the time of such acquisition or payment the Facility comprising such Drop-Down Acquisition, or with respect to which such Material Subsequent Facility Payment relates, has achieved Commercial Operation and (B) (x) both immediately before and after the time on which the definitive agreements for such Investment are entered into, no Default or Event of Default shall have occurred and be continuing and (y) at the time of such transaction, no Default or Event of Default shall have occurred and be continuing under paragraph (b), (c), (g) or (h) of Article VII; (iii) in the case of any Drop-Down Acquisition of a Wood Pellet Production Facility, the Projected Contracted Capacity for the thirty six-month period beginning on the date on which such acquisition occurs is (A) at least 75% (determined pursuant to clause (i) of the purchase consideration under definition of “Applicable Wood Pellet Production Facilities”) or (B) at least 75% (determined pursuant to clause (ii) of the Merger Agreementdefinition of “Applicable Wood Pellet Production Facilities”) (and the Administrative Borrower shall have delivered a certificate of a Responsible Officer certifying as to the foregoing and containing reasonably detailed calculations in support thereof, in form reasonably satisfactory to the Administrative Agent); and (iv) the Administrative Borrower and any Restricted Subsidiary shall comply, and shall cause any acquired entity to comply, with the applicable provisions of Section 5.13 and the Security Documents within the periods provided for therein (any Drop-Down Acquisition or Material Subsequent Facility Payment meeting all relevant criteria of this Section 6.04(j) being referred to herein as a “Permitted Drop-Down Acquisition”);
(2k) to the extent not prohibited by applicable law, loans and advances to officers, directors, managers, consultants and employees of the Administrative Borrower or consultants its Subsidiaries in an aggregate amount not to exceed $1,000,000 at any time outstanding for travel, entertainment, relocation and other business purposes in the ordinary course of business;
(l) Investments in the form of seller “take-back” notes and other non-cash consideration in connection with a Disposition permitted by Section 6.05;
(m) so long as (i) any Parent EntityFarm Credit Lender is a Lender or Voting Participant hereunder and (ii) such Farm Credit Lender has notified the Administrative Borrower that it is eligible to receive patronage distributions directly from such Farm Credit Lender or one of its Affiliates on account of its portion of a Term Loan made (or participated in) by such Farm Credit Lender hereunder, Investments made by the Administrative Borrower as a condition to receiving such patronage distributions in the form of an acquisition of equity in such Farm Credit Lender or one of its Affiliates in such amounts and at such times as such Farm Credit Lender may require in accordance with such Farm Credit Lender’s or its Affiliate’s Organizational Documents and capital plan (as each may be amended from time to time); provided that the maximum amount of equity that the Administrative Borrower shall be required to acquire in such Farm Credit Lender or one of its Affiliates in connection with the portion of such Term Loan made by such Farm Credit Lender hereunder may not exceed the maximum amount permitted by the relevant Organizational Documents and the capital plan of such Farm Credit Lender (x) as in effect on the Original Closing Date or (y) in the case of a Farm Credit Lender that becomes a Lender or Voting Participant as a result of an assignment or participation, in either case pursuant to Section 9.04, at the time of the closing of such assignment or participation;
(n) in addition to Investments permitted by paragraphs (a) through (m) above, additional Investments by the Administrative Borrower or any Restricted Subsidiary so long as (i) the amount invested pursuant to this paragraph (n) does not to exceed $15.0 million in an aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not equal to exceed the Available Amount at the time such amount is invested (ii) both immediately before and after the time on which the definitive agreements for such Investment are entered into, no Default or Event of Default shall have occurred and be continuing and (iii) other than with regard to Investments made with proceeds arising from clause (i)(x) of the definition of Available Amount, as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making on which the definitive agreements for such Investment are entered into, the Total Leverage Ratio (after giving pro forma effect to such Investment) shall be less than or would result therefromequal to 3.50:1.00;
(4o) Permitted Acquisitions and pre-existing in addition to Investments held permitted by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of paragraphs (a) through (n) above, additional Investments by the aggregate fair market value Administrative Borrower or any Restricted Subsidiary from Available Cash (or amounts that would otherwise have constituted Available Cash if not reserved) to the extent the conditions set forth in Section 6.06(a)(ii) are satisfied at the time of such Investment; and
(p) in addition to Investments permitted by paragraphs (a) through (o) above, other Investments by the Administrative Borrower or any Restricted Subsidiary up to an amount which, when added to all such Investments (other than intercompany Indebtedness and Guarantees of Indebtednessmade pursuant to this Section 6.04(p) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time then outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may would not exceed the greater of (i) $25.0 million 20,000,000 and (ii) 0.50an amount equal to 5.00% of Consolidated Total Assets Assets. For purposes of determining compliance with this Section 6.04: (i) in the event that an investment (or any portion thereof) meets the criteria of more than one of the categories of investments permitted in this Section 6.04, the Administrative Borrower and a Restricted Subsidiary, as the case may be, in its sole discretion, may classify at the time of investment such investment (or any portion thereof) and will only be required to include such investment in one of the categories of investments permitted in this Section 6.04; (ii) at the time of incurrence the Administrative Borrower or a Restricted Subsidiary, as the case may be, in its sole discretion, may divide and classify an investment in more than one of the categories of investments permitted in this Section 6.04; (iii) Investments which are capital contributions or purchases of Equity Interests or are purchases of assets (other than Equity Interests) shall be valued at the amount (or, in the case of any Investment made with property other than cash, the fair market value of such property as determined by the Administrative Borrower in good faith) actually contributed or paid (including any assumption of Indebtedness) to purchase such Equity Interests or other assets as of the date any of such Investment is madecontribution or payment less, plus an amount equal to any returns in the case of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount contributions and Equity Interests, returns on and of such Investment (as determined aboveother than Investments under clause (n) of this Section 6.04 made using the Available Amount); and (iv) Investments which are loans, advances or extensions of credit shall be valued at the time principal amount of such loan, advance or extension of credit outstanding as of the date of determination. Accrual of interest or dividends, the accretion of accreted value and the payment of interest or dividends in the form of additional Investments will not be deemed to be the making of an Investment was made);for purposes of this Section 6.04.
Appears in 2 contracts
Samples: Credit Agreement (Enviva Partners, LP), Credit Agreement (Enviva Partners, LP)
Investments, Loans and Advances. Purchase, hold (i) Purchase or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofof any other person, (ii) make or permit to exist any loans or advances to or Guarantees of the obligations ofIndebtedness of any other person, or make (iii) purchase or permit to exist any investment otherwise acquire, in one transaction or any other interest in a series of related transactions, (eachx) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, a line of business or division of such person (each of the foregoing, an “Investment”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) Investments to effect the Transactions (including payment of the purchase consideration under the Merger Agreement)Transactions;
(2b) (i) Investments (x) by the Borrower or any Subsidiary in the Equity Interests of any Subsidiary as of the Closing Date and set forth on Part A of Schedule 6.04 and (y) by the Borrower or any Subsidiary consisting of intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary as of the Closing Date and set forth on Part B of Schedule 6.04; provided, that to the extent any such intercompany loan that is owing by a non-Guarantor to the Borrower or any Guarantor (the “Scheduled Loans”) (or any additional Investments made by the Borrower or any Guarantor pursuant to this proviso) is repaid after the Closing Date or the Borrower or any Guarantor receives, after the Closing Date, any dividend, distribution, interest payment, return of capital, repayment or other amount in respect of any scheduled Investment in the Equity Interests of any non-Guarantor (a “Return of Scheduled Equity”), then additional Investments may be made by the Borrower or any Guarantor in any non-Guarantor in an aggregate amount up to the amount actually received by the Borrower or any Guarantor after the Closing Date as payment in respect of such Investments; provided further that in no event will the aggregate amount of additional Investments made by the Borrower or any Guarantor in non-Guarantors pursuant to this proviso exceed the sum of the original principal amount of the Scheduled Loans on the Closing Date and the aggregate amount of Returns of Scheduled Equity; (ii) Investments in the Borrower or any Guarantor; (iii) Investments by any Subsidiary that is not a Loan Party in any other Subsidiary that is not a Loan Party; (iv) Investments by the Borrower or any Guarantor in any Subsidiary that is not Loan Party in an aggregate amount for all such outstanding Investments made after the Closing Date not to exceed the greater of $250,000,000 and 2.0% of Consolidated Total Assets when made; (v) other intercompany liabilities amongst the Borrower and the Guarantors incurred in the ordinary course of business; (vi) other intercompany liabilities amongst Subsidiaries that are not Guarantors incurred in the ordinary course of business in connection with the cash management operations of such Subsidiaries; and (vii) Investments by the Borrower or any Guarantor in any Subsidiary that is not a Loan Party consisting solely of (x) the contribution or other Disposition of Equity Interests or Indebtedness of any other Subsidiary that is not a Loan Party held directly by the Borrower or such Guarantor in exchange for Indebtedness, Equity Interests (or additional share premium or paid in capital in respect of Equity Interests) or a combination thereof of the Subsidiary to which such contribution or other Disposition is made or (y) an exchange of Equity Interests of any other Subsidiary that is not a Loan Party for Indebtedness of such Subsidiary; provided, that immediately following the consummation of an Investment pursuant to the preceding clause (x) or (y), the Subsidiary whose Equity Interests or Indebtedness are the subject of such Investment remains a Subsidiary;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the Disposition of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 million (i) in the ordinary course of business in an aggregate principal outstanding amount (valued at the time of the making thereof, and without giving effect to any time outstanding (calculated without regard to write-downs or write-offs thereof) not to exceed $10,000,000, (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of the Borrower;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Hedging Agreements entered into for non-speculative purposes;
(h) Investments (not in Subsidiaries, which are provided in clause (b) above) existing on, or contractually committed as of, the Closing Date and set forth on Part C of Schedule 6.04 and any extensions, renewals, replacements or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date or as otherwise permitted by this Section 6.04);
(3i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (n), (q), (r), (dd) and (ii);
(j) other Investments by the Borrower or any Subsidiary in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (aX) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million 1,400,000,000 and (ii) 0.5010.0% of Consolidated Total Assets as of the date any such Investment is when made, plus (Y) so long as no Default or Event of Default shall have occurred and be continuing, any portion of the Available Amount on the date of such election that the Borrower elects to apply to this Section 6.04(j)(Y) in a written notice of a Responsible Officer thereof, which notice shall set forth calculations in reasonable detail the amount of Available Amount immediately prior to such election and the amount thereof elected to be so applied, and plus (Z) an amount equal to any returns (including dividends, interest, distributions, returns of capital or sale proceeds principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investments Investment (which such amount shall not exceed excluding any returns in excess of the amount of such originally invested) pursuant to clause (X); provided, that if any Investment (as determined abovepursuant to this Section 6.04(j) at is made in any person that was not a Subsidiary on the time date on which such Investment was mademade but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the provisions thereof) and not in reliance on this Section 6.04(j);
(k) Investments constituting Permitted Business Acquisitions;
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower or a Subsidiary as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(m) Investments of a Subsidiary acquired after the Closing Date or of a person merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent such acquisition, merger, amalgamation or consolidation is permitted under this Section 6.04, (ii) in the case of any acquisition, merger, amalgamation or consolidation, in accordance with Section 6.05 and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(n) acquisitions by the Borrower of obligations of one or more officers or other employees of the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of the Borrower, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(o) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capitalized Lease Obligations) or of other obligations that do not constitute Indebtedness of the kind described in clauses (b), (e), (f), (g), (h), (i), (j) or (k) of the definition thereof, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(p) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of the Borrower; provided, that the issuance of such Equity Interests are not included in any determination of the Available Amount;
(q) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;
(r) [reserved];
(s) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
Appears in 2 contracts
Samples: Credit Agreement (Dollar Tree Inc), Credit Agreement (Dollar Tree Inc)
Investments, Loans and Advances. PurchaseObligors will not, hold or acquire (including pursuant to and will not permit any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Restricted Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofto, make or permit to exist remain outstanding any Investments in or to any Person, except:
(a) Investments in existence on the Closing Date and described in Schedule 10.2.4 and any Investments that replace, refinance, refund, renew or extend any such Investment but not any increase in the amount thereof unless required by the terms of the Investment or otherwise permitted hereunder;
(b) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the Ordinary Course of Business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(c) Investments held by Borrowers or such Restricted Subsidiary in the form of Cash Equivalents or short-term marketable debt securities;
(d) Investments of (i) the Borrowers in any Wholly-Owned Subsidiary that is a Guarantor, (ii) any Wholly-Owned Subsidiary that is a Guarantor in the Borrowers or in another Wholly-Owned Subsidiary that is a Guarantor and (iii) any Subsidiary that is not an Obligor in any other Subsidiary that is not an Obligor;
(e) [reserved];
(f) Investments consisting of Equity Interests, real or personal property received as non-cash consideration for any Disposition permitted under Section 10.2.9(c);
(g) loans or advances to or Guarantees officers, directors and employees of the obligations of, or make or permit to exist any investment or any other interest in (each, a “Investment”), any other Person, except the following (collectively, “Permitted Investments”):
(1) the Transactions (including payment of the purchase consideration under the Merger Agreement);
(2) loans and advances to officers, directors, employees or consultants of any Parent EntityGeneral Partner, the Borrower or any Company and Restricted Subsidiary Subsidiaries in an aggregate amount not to exceed $15.0 million in an aggregate principal amount 500,000 at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made)outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;
(3i) Investments received in an amount not connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with customers and suppliers, (ii) Investments consisting of deposits, prepayments and other credits to exceed suppliers, (iii) advances of payroll payments to employees and Investments made pursuant to employment and severance arrangements of officers and employees or stock option plans and employee benefit plans, and (iv) the Available Amount as endorsement of instruments for collection or deposit, in each case for the date such Investments are made; provided that no Event foregoing clauses (i), (ii), (iii) and (iv), in the Ordinary Course of Default has occurred and is continuing immediately prior to making such Investment or would result therefromBusiness;
(4i) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5j) intercompany Investments among the Borrower Contingent Obligations permitted by Section 10.2.1 and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum Contingent Obligations of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; provided that such Debt does not exceed $5,000,000;
(bk) Investments constituting deposits made in connection with the aggregate principal amount purchase of Indebtedness owing goods or services in the Ordinary Course of Business;
(l) Investments in the form of Hedging Agreements permitted under Section 10.2.14;
(m) Investments made with Excluded Property;
(n) Investments by an Unrestricted Subsidiary entered into prior to the Borrower day such Unrestricted Subsidiary is designated as a Restricted Subsidiary and not entered into in contemplation thereof; and
(o) other Investments; provided that the Guarantors by Restricted Subsidiaries that Payment Conditions are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) satisfied at the time of such Investment was made);Investments.
Appears in 2 contracts
Samples: Loan and Security Agreement (CSI Compressco LP), Loan and Security Agreement (CSI Compressco LP)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) (i) Investments by the following Company or any Subsidiary in the Equity Interests of the Company or any Subsidiary; (collectivelyii) intercompany loans from the Company or any Subsidiary to the Company or any Subsidiary; and (iii) Guarantees by any Borrower or any Subsidiary Guarantor of Indebtedness otherwise expressly permitted hereunder of the Company or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) $[*] and (2) [*]% of Consolidated Total Assets (plus any return of capital actually received by the Transactions respective investors in respect of Investments theretofore made by them pursuant to this paragraph (including payment a); plus (y) the portion, if any, of the purchase consideration under Cumulative Credit on the Merger Agreementdate of such election that the Company elects to apply to this Section 6.04(a)(y), such election to be specified in a written notice of a Responsible Officer of the Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided further, that the limitations in this paragraph shall not apply to any Investment entered into at a time when the Company is in Ratio Compliance; provided, still further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(2b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by the Company or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05;
(d) loans and advances to current and former officers, directors, employees or consultants of any Parent Entity, the Borrower Company or any Restricted Subsidiary (i) in the ordinary course of business not to exceed the greater of (x) $15.0 million [*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of a Parent Entity solely to the extent that the amount of such loans and advances shall be contributed to the Company in cash as common equity;
(e) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(f) Swap Agreements permitted pursuant to Section 6.10;
(g) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (g) is not increased at any time above the amount of such Investment existing on the Closing Date;
(h) Investments resulting from pledges and deposits under Section 6.02(f);
(3i) other Investments by the Company or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(41) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million [*] and (ii) 0.50[*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date any of such Investment is madefor which financial statements have been delivered pursuant to Section 5.04 plus (2) the portion, plus an amount equal if any, of the Cumulative Credit on the date of such election that the Company elects to any returns apply to this Section 6.04(i)(2), such election to be specified in a written notice of capital or sale proceeds actually received a Responsible Officer of the Company calculating in respect of any such Investments (which such amount shall not exceed reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided further, that the limitations in this paragraph shall not apply to any Investment entered into if, immediately after giving effect thereto, on a Pro Forma Basis, (as determined abovei) either (A) the Loan-to-Value Ratio is equal to or less than [*] to 1.0 or (B) the Fixed Charge Coverage Ratio is at least [*] to 1.0 and (ii) the time such Investment was madeCompany is in Pro Forma Compliance;
(j) Investments constituting Permitted Business Acquisitions;
(k) intercompany loans permitted by Section 6.01(e);
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Company as a result of a foreclosure by the Company or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
Appears in 2 contracts
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interestscapital stock, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations ofto, or make or permit to exist any investment or any other interest in (each, a “Investment”)in, any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) investments (i) existing on the Transactions (including payment Closing Date in the Equity Interests of the purchase consideration under Subsidiaries of Holdings; (ii) by Holdings in the Merger AgreementEquity Interests of the Borrower, CapCo II and Opco GP; (iii) by the Borrower or any Subsidiary of the Borrower in any 90% Subsidiary of the Borrower that is a Guarantor (so long as such Guarantor shall remain a 90% Subsidiary of the Borrower after giving effect to such investment); (iv) by any 90% Subsidiary of the Borrower in any Wholly Owned Subsidiary of the Borrower that is a Guarantor; or (v) by any Subsidiary of the Borrower that is not a Guarantor in any 90% Subsidiary of the Borrower that is not a Guarantor (so long as such Subsidiary shall remain a 90% Subsidiary of the Borrower after giving effect to such investment);
(2b) Permitted Investments and investments that were Permitted Investments when made;
(c) investments arising out of the receipt by the Borrower or any Subsidiary of the Borrower of noncash consideration for the sale of assets permitted under Section 6.05, provided that such consideration (if the stated amount or value thereof is in excess of $2,000,000) is pledged upon receipt pursuant to the Pledge Agreement to the extent required hereby and thereby;
(d) intercompany loans permitted to be incurred as Indebtedness under Sections 6.01(a), (f), (n), (o) and (v);
(i) loans and advances to officers, directors, employees or consultants of any Parent EntityHoldings, the Borrower or any Restricted Subsidiary their Subsidiaries not to exceed $15.0 million 5,000,000 in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof) and (ii) advances of payroll payments and expenses to employees in the ordinary course of business;
(i) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and (ii) prepayments and other credits to suppliers made in the ordinary course of business;
(g) Interest Rate Protection Agreements permitted pursuant to Section 6.01(d);
(3h) Investments investments existing on the Closing Date and set forth on Schedule 6.04;
(i) investments resulting from pledges and deposits referred to in Section 6.02(g) or (h);
(j) other investments by the Borrower and its Subsidiaries in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed $30,000,000 (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this clause (j)); provided that at any time additional investments may be made pursuant to this clause (j) at the election of the Borrower, which additional investments pursuant to this proviso shall only be permitted to the extent that the Borrower so elects (x) to apply an amount not to exceed the Available Investment Basket Amount as at such time to the making of the date such Investments are maderespective investment pursuant to this clause (j) and/or (y) to make additional investments pursuant to this clause (j) with the proceeds of Designated Capital Contributions;
(k) investments by the Borrower and its Subsidiaries in Foreign Subsidiaries of the Borrower in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed $50,000,000 (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this clause (k)); provided that no Event at any time additional investments may be made pursuant to this clause (k) at the election of Default has occurred and is continuing immediately prior the Borrower, which additional investments pursuant to this proviso shall only be permitted to the extent that the Borrower so elects (x) to apply an amount not to exceed the Available Investment Basket Amount at such time to the making such Investment or would result therefromof the respective investment pursuant to this clause (k) and/or (y) to make additional investments pursuant to this clause (k) with the proceeds of Designated Capital Contributions;
(4l) investments constituting Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Business Acquisitions;
(5m) intercompany Investments among Holdings shall be permitted to contribute to the Borrower the proceeds of (i) Designated Capital Contributions, (ii) Special Capital Contributions and (iii) issuances of Equity Interests that are utilized by the Borrower to effect the Notes Refinancing;
(n) investments by the Borrower and its Subsidiaries in Joint Ventures, so long as the Restricted Subsidiaries aggregate amount so invested pursuant to this clause (including intercompany Indebtednessn) (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) does not exceed $15,000,000 (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this clause (n)); provided that at any time additional investments may be made pursuant to this clause (n) at the sum election of the Borrower, which additional investments pursuant to this proviso shall only be permitted to the extent that the Borrower so elects (ax) to apply an amount not to exceed the aggregate fair market value Available Investment Basket Amount at such time to the making of all such Investments the respective investment pursuant to this clause (other than intercompany Indebtedness and Guarantees n) and/or (y) to make additional investments pursuant to this clause (n) with the proceeds of IndebtednessDesignated Capital Contributions;
(o) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and its Subsidiaries may enter into and perform its obligations under Other Hedging Agreements entered into in the Guarantors ordinary course of business and so long as any such Other Hedging Agreement is not speculative in Restricted Subsidiaries that are not Guarantors; nature;
(bp) the aggregate principal amount of Indebtedness owing investments expressly permitted by Section 6.05;
(q) additional investments may be made from time to time to the Borrower and extent made with proceeds of Equity Interests (excluding proceeds of Designated Capital Contributions, proceeds received as a result of the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount exercise of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors Cure Rights pursuant to Section 6.04(31), may not exceed the greater of 7.02 and that portion (iif any) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made95 proceeds of an initial public offering of the common stock of Holdings that are utilized to (x) effect the Holdings Note Refinancing, plus an amount equal (y) repay up to any returns $25,000,000 of capital outstanding Revolving Loans and/or Swingline Loans (to the extent outstanding) or sale (z) repay Term Loans pursuant to Section 2.12(c)) of Holdings, which proceeds actually received or investments in respect turn are contributed to the Borrower;
(r) investments made as part of any such Investments the Xxxxxx County Bond Transactions in accordance with the definition thereof; and
(which such amount shall not exceed s) the amount of such Investment (as determined above) at the time such Investment was made);IPO Reorganization.
Appears in 2 contracts
Samples: Credit Agreement (Graham Packaging Holdings Co), Credit Agreement (Graham Packaging Holdings Co)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions (including payment of the purchase consideration under the Merger Agreement)[Reserved.];
(2i) Investments by the Borrower or any Subsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Borrower or any Subsidiary; provided, that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to $20 million; provided, further, that (x) intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Subsidiaries and (y) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business consistent with past practice shall not be included in calculating the limitation in this paragraph at any time;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 5.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this paragraph (h) is not increased at any time above the amount of such Investment existing on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), (u) and (dd);
(j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof after thereof) not to exceed $40.0 million (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (j)); provided that if any Investment pursuant to this clause (j) is made in any person that is not a Subsidiary of the Borrower at the date madeof the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (b) above and shall cease to have been made pursuant to this clause (j) for so long as such person continues to be a Subsidiary of the Borrower;
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(m);
(3m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of an entity merged into, or consolidated or amalgamated with the Borrower or merged into or consolidated or amalgamated with a Subsidiary after the Closing Date, in each case, (i) to the extent permitted under this Section 6.04 and, (ii) in the case of any acquisition, merger or consolidation or amalgamation, in accordance with Section 6.05 and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation or amalgamation and were in existence on the date of such acquisition, merger or consolidation or amalgamation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of Holdings, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of Holdings;
(r) Investments in an amount not to exceed the Available Amount as equity interests of one or more newly formed persons that are received in consideration of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held contribution by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among Holdings, the Borrower and or the Restricted Subsidiaries applicable Subsidiary of assets (including intercompany Indebtedness)Equity Interests and cash) to such person or persons; provided provided, that the sum of (ai) the aggregate fair market value of all such Investments assets, determined on an arm’s-length basis, so contributed pursuant to this paragraph (other than intercompany Indebtedness r) shall not in the aggregate exceed $15 million and Guarantees (ii) in respect of Indebtedness) made since each such contribution, a Responsible Officer of the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases Borrower shall certify, in value) a form to be agreed upon by the Borrower and the Guarantors Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing, (y) the fair market value of the assets so contributed and (z) that the requirements of paragraph (i) of this proviso remain satisfied;
(s) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) Investments in Foreign Subsidiaries not to exceed $20 million in the aggregate, as valued at the fair market value of such Investment at the time such Investment is made;
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(x) Investments by Borrower and its Subsidiaries, including loans and advances to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Subsidiaries Payment in such amount (provided that are the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) [Reserved];
(z) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(aa) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business;
(bb) Investments received substantially contemporaneously in exchange for Equity Interests of Holdings;
(cc) Investments in joint ventures not Guarantorsin excess of $20 million in the aggregate; provided, that for purposes of this paragraph (cc), Investments may be in the form of a contribution of a Tractor Trailer or Tractor Trailers to such Joint Venture and provided, further, that if any Investment pursuant to this paragraph (cc) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to paragraph (b) above and shall cease to have been made pursuant to this paragraph (cc) for so long as such person continues to be a Subsidiary of the aggregate principal amount of Indebtedness owing Borrower; and
(dd) in addition to the foregoing Investments, the Borrower and its Subsidiaries may make additional Investments; provided that, at the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an the Payment Conditions are satisfied. The amount equal of Investments that may be made at any time pursuant to any returns Section 6.04(b) or 6.04(j) (such Sections, the “Related Sections”) may, at the election of capital or sale proceeds actually received the Borrower, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of any such Investments (which such amount one Related Section shall not exceed be treated as having been used under the amount of such Investment (as determined above) at the time such Investment was made);other Related Section.
Appears in 2 contracts
Samples: Credit Agreement (Quality Distribution Inc), Credit Agreement (Quality Distribution Inc)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation merger or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation merger or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions (including payment of the purchase consideration under the Merger Agreement)Transactions;
(2i) Investments by Intermediate Holdings or any Subsidiary in the Equity Interests of any Subsidiary; (ii) intercompany loans from Intermediate Holdings or any Subsidiary to Intermediate Holdings or any Subsidiary; and (iii) Guarantees by Intermediate Holdings or any Subsidiary of Indebtedness otherwise permitted hereunder of Intermediate Holdings or any Subsidiary; provided, that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Initial Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Loan Parties, plus (B) the net amount outstanding in respect of intercompany loans made after the Initial Closing Date by Loan Parties to Subsidiaries that are not Loan Parties pursuant to clause (ii), plus (C) the aggregate outstanding amount of Guarantees of Indebtedness after the Initial Closing Date by Loan Parties of Subsidiaries that are not Loan Parties pursuant to clause (iii) (other than Guarantees by Loan Parties of the obligations under Secured Hedge Agreements of Subsidiaries that are not Subsidiary Loan Parties), shall not exceed $5.0 million (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b)); provided, further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of Intermediate Holdings or any of the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt of non-cash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower Intermediate Holdings or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 2.5 million in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to Intermediate Holdings or such Subsidiary in cash as common equity;
(f) Accounts, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements (excluding any Swap Agreement entered into for speculative purposes);
(3h) Investments existing on, or contractually committed as of, the Original Closing Date and set forth on Schedule 6.04 to the Existing Credit Agreement and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) (calculated without regard to write-downs or write-offs) is not increased at any time above the amount of such Investments existing or committed on the Original Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Original Closing Date);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), (u) and (dd);
(j) other Investments by Intermediate Holdings or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed $15.0 million (plus any returns of capital actually received by the Available Amount as respective investor in respect of the date such Investments are madeinvestments theretofore made by it pursuant to this paragraph (j)); provided that no Event if any Investment pursuant to this clause (j) is made in any person that is not a Subsidiary at the date of Default has occurred and is continuing immediately prior to the making of such Investment or would result therefromand such person becomes a Subsidiary after such date, such Investment shall, at the election of Intermediate Holdings, thereafter be deemed to have been made pursuant to clause (b) above to the extent then permitted under such clause (b) and shall cease to have been made pursuant to this clause (j) for so long as such person continues to be a Subsidiary;
(4k) Investments constituting Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Business Acquisitions;
(5l) intercompany loans between Subsidiaries that are not Loan Parties and Guarantees by Subsidiaries that are not Loan Parties permitted by Section 6.01(m)(v);
(m) Investments among received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by Intermediate Holdings or any Subsidiary as a result of a foreclosure by Intermediate Holdings or such Subsidiary, as applicable, with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary that is acquired after the Initial Closing Date or of an entity merged into or amalgamated or consolidated with Intermediate Holdings or a Subsidiary after the Initial Closing Date, in each case, (i) to the extent the acquisition of such Subsidiary or such merger, amalgamation or consolidation, as applicable, is permitted under this Section 6.04 and, in the case of any merger, amalgamation or consolidation, permitted under Section 6.05 and (ii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(o) acquisitions by any Loan Party of obligations of one or more officers or other employees of Intermediate Holdings, any Parent Entity, such Loan Party or its subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Intermediate Holdings or any Parent Entity, so long as no cash is actually advanced by Intermediate Holdings, any Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by Intermediate Holdings or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by Intermediate Holdings or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of Intermediate Holdings or any Parent Entity;
(r) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(s) Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade arrangements with customers consistent with past practices;
(t) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to this Section 6.04);
(u) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of Intermediate Holdings or any Subsidiary;
(v) Investments by Intermediate Holdings or any of the Subsidiaries, including loans to any Parent Entity, if Intermediate Holdings or any other Subsidiary would otherwise be permitted to make a Restricted Subsidiaries Payment in such amount (including intercompany Indebtednessprovided that the amount of any such investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(w) Investments arising as a result of Permitted Receivables Financings;
(x) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(y) purchases and acquisitions of Inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business, to the extent such purchases and acquisitions constitute Investments;
(z) Investments received substantially contemporaneously in exchange for Equity Interests of Holdings or any Parent Entity;
(aa) other Investments, provided, that after giving effect to such Investment on a Pro Forma Basis, the Payment Conditions are satisfied; and
(bb) Investments arising from the conversion of the Japanese Intercompany Notes into Equity Interests in Japan Acquisition Co. The amount of Investments that may be made at any time pursuant to Section 6.04(b) or 6.04(j) (such Sections, the “Related Sections”) may, at the election of Intermediate Holdings, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any each such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received increase in respect of any such Investments (which such amount one Related Section shall not exceed be treated as having been used under the amount of such Investment (as determined above) at the time such Investment was made);other Related Section.
Appears in 1 contract
Samples: Amendment Agreement (Momentive Performance Materials Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation merger or amalgamation with a Person that is not a Wholly Owned Restricted Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and its Restricted Subsidiaries, which cash management operations shall not extend to any other Person) to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), in any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) Investments (including, but not limited to, Investments in Equity Interests, intercompany loans, and Guarantees of Indebtedness otherwise expressly permitted hereunder) after the Transactions Closing Date by Loan Parties in Subsidiaries that are not Loan Parties, in partnerships, joint ventures or any other Person in a similar business to the Loan Parties in an aggregate amount (including payment valued at the time of the purchase consideration under making thereof and without giving effect to any write-downs or write-offs thereof) not to exceed an amount equal to the Merger Agreementsum of, without duplication, U.S.$15.0 million plus the Available Amount plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (a);
(2b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by the Borrower or any of its Restricted Subsidiaries of noncash consideration for the sale of assets permitted under Section 6.05;
(d) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any of its Restricted Subsidiary Subsidiaries in the ordinary course of business not to exceed $15.0 U.S.$2.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof) and (ii) advances of payroll payments and expenses to employees of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(e) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(f) Swap Agreements permitted pursuant to Section 6.12;
(g) Investments existing on the Closing Date and set forth on Schedule 6.04;
(h) Investments resulting from pledges and deposits referred to in Section 6.02(f) and (g);
(3i) Investments in an amount not so long as immediately before and after giving effect to exceed the Available Amount as of the date such Investments are made; provided that Investment, no Default or Event of Default has occurred and is continuing immediately prior continuing, other Investments by the Borrower or any of its Restricted Subsidiaries in an aggregate amount (valued at the time of the making thereof, and without giving effect to making such Investment any write-downs or would result therefromwrite-offs thereof) not to exceed U.S.$10 million (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (i));
(4j) Investments constituting Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or Business Acquisitions, so long as any Person acquired in connection with such Permitted AcquisitionsBusiness Acquisitions and each of such Person’s Subsidiaries becomes a Subsidiary Loan Party to the extent required by Section 5.10;
(5k) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect connection with the bankruptcy or reorganization of, or settlement of any such Investments (which such amount shall not exceed delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the amount ordinary course of such Investment (as determined above) at the time such Investment was made)business;
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, another person or make or permit to exist any investment or any other interest in a designation of a Restricted Subsidiary as an Unrestricted Subsidiary of (each, a an “Investment”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions Transactions;
(b) Investments among the Borrowers and their Subsidiaries; provided that the sum of Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof, but net in the case of intercompany loans, and in any event, after giving effect to any returns, profits, distributions, and similar amounts, repayment of loans and the release of guarantees) after the Closing Date by the U.S. Borrowers and the Subsidiary Loan Parties (other than the U.K. Borrower) in (x) Subsidiaries (including payment Foreign Subsidiaries of the purchase Borrowers) that are not Subsidiary Loan Parties and (y) the U.K. Borrower shall not exceed an aggregate net amount equal to $100.0 million outstanding at any time; and provided further that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrowers and the Restricted Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(c) Permitted Investments and investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by any Borrower or any Subsidiary of promissory notes and other non-cash consideration for Dispositions permitted under the Merger AgreementSection 6.05 (excluding Section 6.05(e));
(2e) (i) loans and advances to directors, officers, directorsemployees, employees members of management or consultants of Holdings (or any Parent Entity), the any Borrower or any Restricted Subsidiary in the ordinary course of business not to exceed $15.0 10.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% advances of Consolidated Total Assets payroll payments and expenses to directors, officers, employees, members of management or consultants in the ordinary course of business;
(f) accounts receivable, notes receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers made in the ordinary course of business;
(g) Investments under Swap Agreements permitted pursuant to Section 6.01;
(h) Investments existing on, or contractually committed as of of, the date Closing Date and set forth on Schedule 6.04 and any modification, replacement, renewal or extension thereof so long as any such Investment is mademodification, plus an amount equal to any returns of capital renewal or sale proceeds actually received in respect of any such Investments (which such amount shall extension thereof does not exceed increase the amount of such Investment except by terms thereof or as otherwise permitted by this Section 6.04;
(i) Investments resulting from pledges and deposits permitted by Section 6.02(b)(iii), (f) and (g);
(j) Investments (i) constituting Permitted Business Acquisitions, (ii) in any Subsidiary in an amount required to permit such person to consummate a Permitted Business Acquisition and (iii) in any Subsidiary that is not a Subsidiary Loan Party consisting of the Equity Interests of any person who is not a Subsidiary Loan Party;
(k) Guarantees (i) permitted by Sections 6.01(k) and (ii) of leases (other than Capital Lease Obligations) or of other obligations not constituting Indebtedness, in each case in the ordinary course of business;
(l) Investments received in connection with the bankruptcy or reorganization of any person, or settlement of obligations of, or other disputes with or judgments against, or foreclosure or deed in lieu of foreclosure with respect to any Lien held as determined abovesecurity for an obligation, in each case in the ordinary course of business;
(m) Investments of any Borrower or any Restricted Subsidiary acquired after the Closing Date or of a person merged into or consolidated with a Borrower or a Restricted Subsidiary, in each case, in accordance with Section 6.05 (other than Section 6.05(e)), after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation and any modification, replacement, renewal or extension thereof so long as any such modification, renewal or extension thereof does not increase the amount of such Investment except as otherwise permitted by this Section 6.04;
(n) acquisitions by the Borrowers of obligations of one (1) or more directors, officers, employees, members or management or consultants of Holdings, the Borrowers or their Subsidiaries in connection with such person’s acquisition of Equity Interests of Holdings (or its Parent Entity), so long as no cash is actually advanced by the Borrowers or any of their Subsidiaries to such persons in connection with the acquisition of any such obligations;
(o) Investments in Holdings in amounts and for purposes for which Restricted Payments to Holdings are permitted under Section 6.06;
(p) Investments consisting of Indebtedness, Liens, Sale and Lease-Back Transactions, mergers, consolidations, Dispositions, Restricted Payments, Affiliate transactions and prepayments and repurchases of Indebtedness permitted under Section 6.01, 6.02, 6.03, 6.05, 6.06, 6.07(b)(iv), 6.07(b)(viii), 6.07(b)(xvii), 6.09 and 9.04(f) and (i);
(q) Investments by any Borrower or any Restricted Subsidiary in an outstanding aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed, since the Amendment No. 3 Effective Date, $150.0 million, (plus any returns, profits, distributions and similar amounts, repayments of loans and the release of guarantees in respect of Investments theretofore made by it pursuant to this paragraph (q); provided, however, that notwithstanding anything to the contrary herein, any Investments made pursuant to this paragraph (q) prior to the Amendment No. 3 Effective Date shall not count against or otherwise reduce the $150.0 million Investment capacity set forth above;
(r) other Investments by any Borrower or any Restricted Subsidiary so long as the Investment Conditions are satisfied;
(s) Investments in the ordinary course of business consisting of (A) endorsements for collection or deposit or (B) customary trade arrangements with customers;
(t) Investments to the extent the consideration paid therefor consists solely of Equity Interests of the applicable person or any direct or indirect parent thereof;
(u) Investments made in the ordinary course of business in connection with obtaining, maintaining or renewing client and customer contracts and loans or advances made to, and guarantees with respect to obligations of, distributors, suppliers, licensors and licensees in the ordinary course of business;
(v) Investments made by any Restricted Subsidiary that is not a Loan Party to the extent such Investments are made with the proceeds received by such Restricted Subsidiary from an Investment was mademade by a Loan Party in such Restricted Subsidiary pursuant to this Section 6.04; and
(w) Investments in, or relating to, a Special Purpose Subsidiary that, in the good faith determination of the Lead Borrower, are necessary or advisable to effect any Receivables Facility permitted by Section 6.01(z) or any Investment in an entity which is not a Restricted Subsidiary to which a Restricted Subsidiary sells accounts receivable in connection with a Receivables Facility permitted by Section 6.01(z);.
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) [Reserved];
(i) Investments by the following Borrowers or any Subsidiary in the Equity Interests of the Borrowers or any Subsidiary; (collectivelyii) intercompany loans from the Borrowers or any Subsidiary to the Borrowers or any Subsidiary; and (iii) Guarantees by the Borrowers or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Borrowers or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Second Restatement Effective Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Second Restatement Effective Date to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Second Restatement Effective Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) $200.0 million and (2) 7.0% of Consolidated Total Assets (plus any return of capital actually received by the Transactions respective investors in respect of Investments theretofore made by them pursuant to this paragraph (including payment b)); plus (y) the portion, if any, of the purchase consideration under Cumulative Credit on the Merger Agreementdate of such election that the Borrowers elect to apply to this Section 6.04(b)(y), such election to be specified in a written notice of a Responsible Officer of the Borrowers calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided further, that the limitations in this paragraph shall not apply to any Investment entered into at a time when the Borrowers are in Ratio Compliance; provided, still further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrowers and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrowers or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower Borrowers or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any direct or indirect parent of Holdings) solely to the extent that the amount of such loans and advances shall be contributed to the Borrowers in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements permitted pursuant to Section 6.12;
(h) Investments existing on, or contractually committed as of, the Second Restatement Effective Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing on the Second Restatement Effective Date;
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (r), (s), (u) and (ee);
(j) other Investments by the Borrowers or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed 3. the greater of (i) $25.0 150.0 million and (ii) 0.505% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 plus 4. the portion, if any, of the Cumulative Credit on the date of such election that the Borrowers elect to apply to this Section 6.04(j)(ii), such election to be specified in a written notice of a Responsible Officer of the Borrowers calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrowers as a result of a foreclosure by the Borrowers or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Second Restatement Effective Date or of a person merged into any Borrower or merged into or consolidated with a Subsidiary after the Second Restatement Effective Date, in each case, (i) to the extent permitted under this Section 6.04, (ii) in the case of acquisition, any merger or consolidation, in accordance with Section 6.05 and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(o) acquisitions by the Borrowers of obligations of one or more officers or other employees of Holdings, any Parent Entity, the Borrowers or their Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by the Borrowers or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such Investment obligations;
(p) Guarantees by the Borrowers or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrowers or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is mademade with Equity Interests of Holdings (or any Parent Entity);
(r) Investments in the Equity Interests of one or more newly formed persons that are received in consideration of the contribution by Holdings, plus the Borrowers or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided, that (i) the fair market value of such assets, determined on an amount equal arm’s-length basis, so contributed pursuant to any returns of capital or sale proceeds actually received this paragraph (r) shall not in the aggregate exceed $10.0 million and (ii) in respect of each such contribution, a Responsible Officer of the Borrowers shall certify, in a form to be agreed upon by the Borrowers and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (y) the fair market value of the assets so contributed and (z) that the requirements of clause (i) of this proviso remain satisfied;
(s) Investments consisting of the redemption, purchase, repurchase or retirement of any such Equity Interests permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(which such amount shall u) Investments in Foreign Subsidiaries not to exceed $20.0 million in the amount aggregate, as valued at the fair market value of such Investment (as determined above) at the time such Investment was is made;
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to this Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrowers or such Subsidiary;
(x) Investments by Borrowers and their Subsidiaries, including loans to any direct or indirect parent of the Borrowers, if the Borrowers or any other Subsidiary would otherwise be permitted to make a dividend or distribution in such amount (provided that the amount of any such Investment shall also be deemed to be a distribution under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Investments arising as a result of Permitted Receivables Financings;
(z) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(aa) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business;
(bb) Investments received substantially contemporaneously in exchange for Equity Interests of the Borrowers; provided that such Investments are not included in any determination of the Cumulative Credit;
(cc) Investments in joint ventures in an aggregate amount not to exceed the greater of $150.0 million and 5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04;
(dd) [reserved];
(ee) intercompany Investments in connection with the Restructuring Transactions; and
(ff) Investments in a Similar Business in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed (x) the greater of $150.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (ff)) plus (y) the Cumulative Credit; provided that if any Investment pursuant to this paragraph (ff) is made in any person that is not a Subsidiary of the Borrowers at the date of the making of such Investment and such person becomes a Subsidiary of the Borrowers after such date, such Investment shall thereafter be deemed to have been made pursuant to paragraph (b) above and shall cease to have been made pursuant to this paragraph (ff) for so long as such person continues to be a Subsidiary of the Borrower; The amount of Investments that may be made at any time pursuant to Section 6.04(b) or 6.04(j) (such Sections, the “Related Sections”) may, at the election of the Borrowers, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section.
Appears in 1 contract
Samples: Credit Agreement (RBS Global Inc)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), in any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) Investments by Holdings in the Transactions (including payment Equity Interests of the purchase consideration under the Merger Agreement)U.S. Borrower;
(2i) Investments by the U.S. Borrower or any Subsidiary in the Equity Interests of the U.S. Borrower or any Subsidiary; (ii) intercompany loans from the U.S. Borrower or any Subsidiary to the U.S. Borrower or any Subsidiary; and (iii) Guarantees by the U.S. Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the U.S. Borrower or any Subsidiary; provided that no (A) Investments shall be made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, (B) intercompany loans shall be made by Loan Parties after the Closing Date to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), or (C) Guarantees should be given by Loan Parties of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), if, immediately after giving effect thereto, the sum of all such Investments made (or, pursuant to the last sentence of this Section, deemed made) pursuant to clauses (A), (B) and (C) (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof, but after deducting any return of capital actually received by the U.S. Borrower or the respective Subsidiary Loan Parties in respect of investments or loans theretofore made by them pursuant to this paragraph (b) (or, in the case of Guarantees made by them pursuant to this paragraph (b), after deducting any reduction in the amount thereof without having made payment thereunder)) would exceed (x) 5% of Consolidated Total Assets as of the end of the most recently completed fiscal year of the U.S. Borrower for which financial statements have been delivered to the Administrative Agent, plus (y) the portion, if any, of the Available Investment Basket Amount on the date of such election that the U.S. Borrower elects to apply to this Section 6.04(b)(y); and provided further that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations and intercompany sales of Holdings (prior to a Qualified IPO), the U.S. Borrower and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by Holdings (prior to a Qualified IPO), the U.S. Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(e) (i) loans and advances to officers, directors, employees or consultants of any Parent EntityHoldings (prior to a Qualified IPO), the U.S. Borrower or any Restricted Subsidiary in the ordinary course of business not to exceed $15.0 10.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof) and (ii) advances of payroll payments and expenses to employees in the ordinary course of business;
(f) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements permitted pursuant to Section 6.13;
(h) Investments existing on the Closing Date and set forth on Schedule 6.04;
(i) Investments resulting from pledges and deposits referred to in Sections 6.02(f), (g), (k), (t), (x), (bb) and (cc);
(3j) other Investments in an amount not by Holdings (prior to exceed a Qualified IPO), the Available Amount as of the date such Investments are madeU.S. Borrower or any Subsidiary; provided that no Event Investments may be made (or, pursuant to the last sentence of Default has occurred and is continuing this Section, deemed made) pursuant to this Section 6.04(j) if, immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that after giving effect thereto, the sum of (a) the aggregate fair market value of all such Investments made pursuant to this Section 6.04(j) (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value the time of the making thereof, and without taking into account subsequent increases giving effect to any write-downs or decreases in value) write-offs thereof, but after deducting any return of capital or principal actually received by the U.S. Borrower and or the Guarantors respective Subsidiary in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount respect of Indebtedness owing to the Borrower and the Guarantors investments theretofore made by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors them pursuant to this Section 6.04(316.04(j) (or, in the case of Guarantees made by them pursuant to this Section 6.04(j), may not after deducting any reduction in the amount thereof without them making payment thereunder)) would exceed the greater of (i) $25.0 million and (ii) 0.505% of Consolidated Total Assets as of the date any such Investment is madeend of the most recently completed fiscal year of the U.S. Borrower for which financial statements have been delivered to the Administrative Agent, plus an amount equal (ii) the portion, if any, of the Available Investment Basket Amount on the date of such election that the U.S. Borrower elects to apply to this Section 6.04(j)(ii);
(k) Investments constituting Permitted Business Acquisitions;
(l) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(m) intercompany loans and other Investments between Foreign Subsidiaries that are not Loan Parties;
(n) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business;
(o) the Transactions;
(p) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the U.S. Borrower as a result of a foreclosure by the U.S. Borrower or any of the Subsidiaries with respect to any returns secured Investments or other transfer of capital or sale proceeds actually received title with respect to any secured Investment in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made)default;
Appears in 1 contract
Samples: Credit Agreement (Hexion Specialty Chemicals, Inc.)
Investments, Loans and Advances. PurchaseThe Borrower will not, and will not cause or permit any of the Subsidiaries to, purchase, hold or acquire (including pursuant to any mergerassets, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity InterestsCapital Stock, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans loans, extensions of credit or advances to or Guarantees of the obligations to, make guarantees in favor of, or make or permit to exist any investment other investment, capital contribution or any other interest in (each, a “Investment”)in, any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1i) equity investments existing on the Transactions Effective Date by the Borrower in the Subsidiaries and listed on Schedule 6.04, (including payment ii) contributions of equity made after the Effective Date to Subsidiaries of the purchase consideration under Borrower that do not exceed $15,000,000 in the Merger Agreementaggregate during any Fiscal Year, as long as such contributions are not made for the purpose of funding an acquisition not otherwise permitted hereunder, and (iii) treasury stock held by the Borrower and its Subsidiaries on the Effective Date and listed on Schedule 6.04 or acquired by the Borrower or a Subsidiary as permitted pursuant to Section 6.06(a);
(2b) loans and advances to officers, directors, employees or consultants of any Parent Entity, made after the Effective Date by the Borrower or any Restricted Wholly Owned Subsidiary not that is a Domestic Subsidiary to exceed $15.0 million any Subsidiary or the Borrower; provided, that, any such loan or advance (i) is evidenced by an Intercompany Note pledged and delivered to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement (other than as excepted in an aggregate principal amount at any time outstanding clause (calculated without regard iii) of Section 6.01(c)), and (ii) is otherwise permitted pursuant to write-downs or write-offs thereof after the date madeSection 6.01 (c);
(3c) Investments trade accounts receivable (and related notes and instruments) arising in the ordinary course of business consistent with past practices;
(i) advances to employees for home-swing loans and moving and travel expenses in the ordinary course of business consistent with past practices, and guarantees by the Borrower in connection with home-swing loans of third parties to employees and (ii) loans to executive officers of the Borrower to assist in the payment of taxes resulting from an amount not election made under Section 83(b) of the Code;
(e) Cash Equivalents;
(f) securities held by the Borrower or any of the Subsidiaries prior to exceed the Available Amount Effective Date and listed in Schedule 6.04;
(g) in connection with one or more non-hostile acquisitions by the Borrower or any Qualified Acquisition Subsidiary, any assets or Capital Stock (other than Margin Stock) of any other person (such assets, in the case of an asset acquisition, or person, in the case of the acquisition of Capital Stock, is referred to herein as the "Acquired Entity") so long as (A) in the case of an acquisition of assets, such assets are to be used, and in the case of an acquisition of Capital Stock, the person so acquired is engaged, in a business substantially similar or related to the businesses of the Borrower on the date hereof, (B) the Borrower shall have provided the Lenders with the financial projections required by Section 5.04(g) and such other information as the Lenders shall reasonably request, (C) on the date of such acquisition and immediately after giving effect thereto, the representations and warranties set forth in Article III shall be true and correct in all material respects with the same effect as though made on and as of the such date such Investments are made; provided that and no Default or Event of Default has occurred and is continuing immediately prior shall exist, (D) after giving effect to making such Investment or would result therefrom;
Permitted Acquisition (4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among as defined below), the Borrower shall have delivered to the Administrative Agent calculations satisfactory to the Administrative Agent demonstrating that on a pro forma basis the Borrower is in compliance with Sections 6.13(a) and (b), (E) in the Restricted Subsidiaries case of an acquisition of Capital Stock of a person, then simultaneously with any such acquisition, the Administrative Agent for the benefit of the Secured Parties shall be granted (including intercompany Indebtedness); provided that i) in the sum case of (a) a person organized under the aggregate fair market value laws of the United States, any State thereof or the District of Columbia, a first priority security interest in all of such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) Capital Stock acquired by the Borrower or any Qualified Acquisition Subsidiary as part of such acquisition, and (ii) in the Guarantors in Restricted Subsidiaries case of a person organized under the laws of a jurisdiction other than the United States, any State thereof or the District of Columbia, that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to will be acquired directly by the Borrower or a Domestic Subsidiary, a first priority security interest in 65% of all of the Capital Stock of the person so acquired, and in all cases the Guarantors by Restricted Subsidiaries Borrower shall, and shall cause any applicable Subsidiary to, execute any documents (including a Supplemental Agreement, Intercompany Note, financing statements and other Collateral Documents) and take all action (including filing financing statements and obtaining and providing consents, and legal opinions) that are not Guarantors at any time outstandingmay be required under applicable law, or that the Administrative Agent may request, in order to grant, preserve, protect and perfect such security interest, (F) in the case of an acquisition of Capital Stock of a person, the Borrower acquires directly or indirectly 100% of the Capital Stock of such person; and (cG) the total aggregate principal amount consideration for any single acquisition (or series of Indebtedness related acquisitions) of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may such Capital Stock or assets shall not exceed the greater of (i) $25.0 million 20,000,000 if immediately prior, and after giving effect, to such acquisition, the Consolidated Leverage Ratio is less than 3.00 to 1.00 and the Consolidated Fixed Charge Coverage Ratio is not less than 2.75 to 1.00 and (ii) 0.50% $5,000,000 (and $15,000,000 in the aggregate for all such acquisitions in any Fiscal Year) if immediately prior, and after giving effect, to such acquisition, the Consolidated Leverage Ratio is less than 3.25 to 1.00 and the Consolidated Fixed Charge Coverage Ratio is not less than 2.50 to 1.00 (such consideration in clauses (i) and (ii) above to include, without limitation, the amount of Consolidated Total Assets Indebtedness incurred pursuant thereto as permitted by Section 6.01(j)) (any acquisition satisfying each of the date criteria set forth in the preceding clauses (A) through (G) being referred to herein as a "Permitted Acquisition");
(h) loans and advances made after the Effective Date by (i) any Foreign Subsidiaries to the Borrower or any Wholly Owned Subsidiary that is a Domestic Subsidiary that are permitted pursuant to Section 6.01(e) and (ii) any Wholly Owned Foreign Subsidiary to another Wholly Owned Foreign Subsidiary that are permitted pursuant to Section 6.01(k);
(i) loans to any Affiliate of the Borrower or its Subsidiaries; provided, that, (i) such Investment is made, plus loans do not exceed an aggregate amount equal to $5,000,000 at any returns one time outstanding, and (ii) all such loans are evidenced by Intercompany Notes pledged to the Administrative Agent and the Lenders pursuant to the Pledge Agreement; and
(j) a contribution of capital assets to the Borrower or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed Wholly Owned Subsidiary that is a Domestic Subsidiary to the amount of such Investment (as determined above) at the time such Investment was madeextent permitted by Section 6.05(g);.
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations ofto, or make or permit to exist any investment or any other interest in (each, a “Investment”)in, any other Person, except the following (collectively, “Permitted Investments”):except:
(1i) investments by Holdings and the Subsidiaries existing on the 2016 Restatement Date in the Equity Interests of Holdings and the Subsidiaries and (ii) additional investments by Holdings and the Subsidiaries in the Equity Interests of Holdings, the Subsidiaries, the Unrestricted Subsidiaries and the Escrow Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to a Collateral Agreement or another Security Document (subject to Agreed Security Principles), (B) the Transactions (including payment aggregate amount of the purchase consideration under the Merger Agreement);
(2) investments by Loan Parties in, and loans and advances by Loan Parties to, Escrow Subsidiaries shall not exceed the amount reasonably determined by Holdings to officersbe the amount such Escrow Subsidiary would be required to pay in respect of accrued interest, directorsaccreted original issue discount, employees or consultants premium, fees and expenses in the event that the related Permitted Acquisition is not consummated at the applicable Escrow Release Effective Time and (C) the aggregate outstanding amount of any Parent Entityinvestments by Loan Parties in, the Borrower and loans and advances by Loan Parties to, Escrow Subsidiaries and Subsidiaries of Holdings that are not Loan Parties, and investments by Holdings or any Restricted Subsidiary not to exceed $15.0 million in an aggregate principal amount at in, and loans and advances by Holdings or any time outstanding Subsidiary to, any Unrestricted Subsidiary made after the 2016 Restatement Date (calculated determined without regard to any write-downs or write-offs thereof of such investments, loans and advances) shall not exceed (at the time such investment, loan or advance is made) the greater of (x) $600,000,000 and (y) 15% of Consolidated EBITDA as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Sections 5.04(a) or 5.04(b), as the case may be, and 5.04(c) have been delivered or for which comparable financial statements have been filed with the Securities and Exchange Commission (it being understood and agreed (1) that in the event of the release of the Guarantee of a Loan Party upon or after the date madedesignation by Holdings of such Loan Party as an Excluded Subsidiary pursuant to clause (h) of the definition thereof, any then-outstanding investment by any other Loan Party in, or any loan or advance by any other Loan Party to, such Loan Party, in each case, made after the 2016 Restatement Date and while such entity was a Loan Party, shall be deemed to have been made at the time of the effectiveness of such designation and shall be subject to the limitations set forth in this proviso and (2) that any investment, loan and advance subject to this proviso shall no longer be deemed to be outstanding if the Escrow Subsidiary, Unrestricted Subsidiary or Subsidiary that received such investment, loan or advance subsequently becomes, or is merged into, amalgamated or consolidated with, a Loan Party);
(3i) Investments in an amount not Permitted Investments;
(j) loans or advances made by Holdings to exceed the Available Amount as of the date such Investments are madeany Subsidiary or by any Subsidiary to Holdings or another Subsidiary; provided that (i) such loans and advances shall be subordinated to the Obligations to the extent required by Section 6.01(c) and (ii) the amount of such loans and advances made after the 2016 Restatement Date by Loan Parties to Subsidiaries that are not Loan Parties and outstanding at any time shall be subject to the limitation set forth in clause (a) above;
(k) 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) Holdings and the Subsidiaries may make loans and advances in the ordinary course of business to their respective employees, directors, officers and consultants so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $50,000,000;
(m) Holdings and the Subsidiaries may enter into Hedging Agreements that are permitted under Section 6.01(j);
(n) investments resulting from Letters of Credit issued pursuant to Section 2.22 and guarantees (other than in respect of Indebtedness) for the account of Wholly Owned Subsidiaries of Holdings that are not Loan Parties;
(o) Holdings and the Subsidiaries may acquire all or substantially all the assets of a Person or division, product line or line of business of such Person, or not less than a majority of the Equity Interests (other than directors’ qualifying shares) of a Person (referred to herein as the “Acquired Entity”), or, in connection with a tender offer or similar multi‑step acquisition, such lesser percentage (but not less than a majority of the voting Equity Interests) if Holdings has publicly stated its intention to acquire, directly or indirectly, not less than a majority of the Equity Interests (other than directors’ qualifying shares) of such Acquired Entity at the end of such process; provided that (i) the Acquired Entity shall be in a Similar Business; and (ii) at the time of such transaction (A) both before and after giving effect thereto, no Event of Default has shall have occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantorsbe continuing; (bB) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made Holdings would be in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made)Pro Forma Compliance;
Appears in 1 contract
Investments, Loans and Advances. Purchase(a) The Borrower will not, and will not cause or permit any of the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity InterestsCapital Stock, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans loans, extensions of credit or advances to or Guarantees of the obligations ofto, maintain any Deposit Account or make or permit to exist any investment other investment, capital contribution or any other interest in (each, a “Investment”)in, any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1i) investments existing on the Transactions (including payment of Effective Date, to the purchase consideration under extent set forth on Schedule 6.04(a)(i), by the Merger Agreement)Borrower in Wholly Owned Subsidiaries;
(2ii) loans and advances to officers, directors, employees or consultants of any Parent Entity, made after the Effective Date by the Borrower to Wholly Owned Subsidiaries; provided that (A) any such loan or advance is evidenced by an Intercompany Note pledged and delivered to the Agent on behalf of the Secured Parties pursuant to the Security Agreement, (B) any Restricted such loan or advance to any Wholly Owned Subsidiary not to exceed $15.0 million in an shall be permitted only so long as such person remains a Wholly Owned Subsidiary and (C) the aggregate principal amount outstanding at any time outstanding of loans and advances (calculated without regard to write-downs or write-offs thereof excluding investments under clauses (iii) and (iv) of this Section 6.04(a)) made by the Borrower after the date made)Effective Date to Foreign Subsidiaries shall not exceed $1,000,000;
(3iii) Investments investments by the Borrower in an amount not to exceed the Available Amount as of the date such Investments Wholly Owned Subsidiaries which are madeForeign Subsidiaries; provided that (A) such investments consist of receivables for inventory transferred to such Foreign Subsidiaries in the ordinary course of business for resale to customers of such Foreign Subsidiaries, (B) the aggregate principal amount of such receivables outstanding at any time shall not exceed $5,000,000, (C) any such receivable shall be discharged, released or cancelled only to the extent that the Borrower has received payment of the amount due from the applicable Foreign Subsidiary, (D) the Borrower shall receive payment of a corresponding portion of any such receivable for any goods transferred to any Foreign Subsidiary within 10 Business Days after receipt by such Foreign Subsidiary of payment from its customer for such 85 91 goods and (E) the original amount of any such receivable is based on the Borrower's reasonable, good faith estimate of the amount that would be paid in an arms-length transaction with an independent, unrelated third party;
(iv) investments by the Borrower in Wholly Owned Subsidiaries which are Foreign Subsidiaries; provided that (A) such investments consist of receivables for parts transferred to such Foreign Subsidiaries in the ordinary course of business for use in manufacturing and assembly by such Foreign Subsidiaries, (B) the aggregate principal amount of such receivables to any Foreign Subsidiary outstanding at any time is less than the aggregate principal amount of accounts payable by the Borrower to such Foreign Subsidiary for finished products acquired by the Borrower in the ordinary course of business, (C) the amount of any such receivable or payable is based on the Borrower's reasonable, good faith estimate of the amount that would be paid in an arms'-length transaction with an independent, unrelated third party and (D) all such Foreign Subsidiaries shall have executed and delivered to the Agent an Acknowledgement of Subordination substantially in the form of Exhibit L hereto;
(v) Cash Equivalents, so long as no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefromcontinuing;
(4A) Permitted Acquisitions trade accounts receivable (and pre-existing Investments held by Persons acquired related notes and instruments) arising in Permitted Acquisitions or acquired the ordinary course of business consistent with past practices and (B) notes receivable in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value principal amount of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) up to $250,000 outstanding at any time constituting seller financing for sales made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors Subsidiaries in Restricted the ordinary course of business consistent with past practices, provided that any such notes shall be pledged to the Agent on behalf of the Secured Parties pursuant to the Security Agreement;
(vii) advances to employees for moving and travel expenses in the ordinary course of business consistent with past practices;
(viii) investments in Domestic Subsidiaries organized or acquired after the Effective Date; provided that (A) more than 50% of the aggregate ordinary voting power and more than 50% of the ownership interests of any such Subsidiary are owned, directly or indirectly, by the Borrower, (B) all Capital Stock of any such Subsidiary owned, directly or indirectly, by the Borrower shall be pledged to the Agent on behalf of the Secured Parties pursuant to the Security Agreement and (C) such investments shall be made solely with the proceeds of Qualifying Capital Contributions; and
(ix) Permitted Acquisitions; provided, that, the sum of expenditures made for Permitted Acquisitions (including, without limitation, the ICAT Acquisition and the Simulation Acquisition) plus the sum of repurchases (or dividends, as the case may be) made pursuant to Section 6.06(iii)(B), shall not Guarantors; exceed $10,000,000 in any fiscal year of the Borrower during the term of this Agreement.
(b) The Borrower shall not issue, sell, transfer, lease or otherwise dispose of any of its common stock to, or accept any capital contribution from, any person, other than the aggregate principal amount Parent or permit to exist any rights, warrants or options exercisable for, or any securities exchangeable for or convertible into, any shares of Indebtedness owing to common stock of the Borrower and Borrower; provided, that any such issuance to, or contribution by, the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of Parent shall be permitted only if (i) $25.0 million and the Parent shall receive no consideration therefor (other than additional shares of common stock of the Borrower which are immediately pledged to the Agent pursuant to the Pledge Agreement for the benefit of the Secured Parties), (ii) 0.50% the Net Cash Proceeds of Consolidated Total Assets such capital contribution (other than a Qualifying Capital Contribution) are applied as of required by Section 2.12(e) and (iii) the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect Net Cash Proceeds of any such Investments (which such amount Qualifying Capital Contribution shall not exceed the amount of such Investment be used, directly or indirectly, to repay any Indebtedness (as determined aboveother than Obligations) at the time such Investment was made);or to redeem or repurchase any Preferred Stock.
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a “Investment”), any other Person, except the following (collectively, “Permitted Investments”):
(1) the Transactions (including payment of the purchase consideration under the Merger Agreement);
(2) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 25.0 million in an aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 50.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);
(4) Investments in Foreign Subsidiaries; provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made by the Borrower and the Restricted Subsidiaries since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value); (b) the aggregate principal amount of Indebtedness of Foreign Subsidiaries owing to the Borrower and the other Restricted Subsidiaries at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Foreign Subsidiaries that is Guaranteed by the Borrower and the other Restricted Subsidiaries at any time outstanding, when taken together with the aggregate amount of payments made with respect to entities that do not become Guarantors following Permitted Acquisitions, may not exceed the greater of (i) $100 million and (ii) 1.15% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);
(5) Cash Equivalents and, to the extent not made for speculative purposes, Investment Grade Securities or Investments that were Cash Equivalents or Investment Grade Securities when made;
(6) Investments arising out of the receipt by the Borrower or any of the Restricted Subsidiaries of non-cash consideration in connection with any sale of assets permitted under Section 6.05;
(7) accounts receivable, security deposits and prepayments and other credits granted or made in the ordinary course of business and any Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and others, including in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, such account debtors and others, in each case in the ordinary course of business;
(8) Investments acquired as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(9) Hedge Agreements;
(10) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any replacements, refinancings, refunds, extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (10) is not increased at any time above the amount of such Investments existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(11) Investments resulting from pledges and deposits that are Permitted Liens;
(12) intercompany loans among Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(21);
(13) acquisitions of obligations of one or more officers or other employees of any Parent Entity, Borrower or any Subsidiary of Borrower in connection with such officer’s or employee’s acquisition of Equity Interests of any Parent Entity, so long as no cash is actually advanced by the Borrower or any Restricted Subsidiary to such officers or employees in connection with the acquisition of any such obligations;
(14) Guarantees of operating leases (for the avoidance of doubt, excluding Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case, entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(15) Investments to the extent that payment for such Investments is made with Equity Interests of any Parent Entity;
(16) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(17) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;
(18) Guarantees permitted under Section 6.01;
(19) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or any Restricted Subsidiary;
(20) Investments, including loans and advances, to any Parent Entity so long as Borrower or any Restricted Subsidiary would otherwise be permitted to make a Restricted Payment in such amount; provided that the amount of any such Investment will be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 for all purposes of this Agreement;
(21) Investments consisting of the leasing or licensing of intellectual property in the ordinary course of business or the contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(22) purchases or acquisitions of inventory, supplies, materials and equipment or purchases or acquisitions of contract rights or intellectual property in each case in the ordinary course of business;
(23) Investments in assets useful in the business of the Borrower or any Restricted Subsidiary made with (or in an amount equal to) any Reinvestment Deferred Amount (as defined in the Term Loan Credit Agreement as originally in effect) or Below Threshold Asset Sale Proceeds; provided that if the underlying Asset Sale was with respect to assets of the Borrower or a Subsidiary Loan Party, then such Investment shall be consummated by the Borrower or a Subsidiary Loan Party;
(24) any Investment in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person, in each case in connection with a Qualified Receivables Financing, including Investments of funds held in accounts permitted or required by the arrangements governing such Qualified Receivables Financing or any related Indebtedness;
(25) intercompany current liabilities owed to Unrestricted Subsidiaries or joint ventures incurred in the ordinary course of business in connection with the cash management operations of the Borrower and its Subsidiaries;
(26) Investments that are made with Excluded Contributions;
(27) Investments; provided that the aggregate fair market value of such Investments made since the Closing Date that remain outstanding (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value), when taken together with the aggregate amount of payments made with respect to Junior Financings pursuant to Section 6.09(2)(a) and Restricted Payments pursuant to Section 6.06(15) does not exceed, as of the date such Investments are made, $75.0 million; and
(28) additional Investments; provided that both immediately before such Investment is made and immediately after giving effect to such Investment, the Payment Conditions are satisfied.
Appears in 1 contract
Samples: Revolving Credit Agreement (Neiman Marcus Group LTD Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) [reserved];
(i) Investments by the following Borrower or any Subsidiary in the Equity Interests of any Subsidiary; (collectivelyii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Borrower or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write‑downs or write‑offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) the net amount outstanding in respect of intercompany loans made after the Closing Date by Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees by Loan Parties of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate amount equal to (x) the greater of (1) $500.0 million and (2) 4.5% of Consolidated Total Assets as of the Transactions end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b)); plus (y) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(b)(y); provided, further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(c) Permitted Investments and Investments that were Permitted Investments when made (including payment of in connection with the purchase consideration under the Merger AgreementArbitrage Programs);
(2d) Investments arising out of the receipt by the Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 50.0 million as of the end of the fiscal quarter immediately prior to the date of such loan or advance for which financial statements have been delivered pursuant to Section 5.04 in an the aggregate principal amount at any time outstanding (calculated without regard to write-write downs or write-write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any direct or indirect parent of Holdings) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity, and advances to real estate agents in the ordinary course of business;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to any increase as required by the terms of any such Investment as in existence on the Closing Date);
(3i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), (u) and (ee);
(j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write‑downs or write‑offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4i) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 550.0 million and (ii) 0.505.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 (plus, without duplication for such amounts included in the calculation of the Cumulative Credit, any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (j)) plus (ii) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(j)(ii); provided that if any Investment pursuant to this clause (j) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, then (so long as such Investment also complies with clause (k) below if such person becomes a Subsidiary as a result of such Investment) such Investment shall thereafter be deemed to have been made pursuant to clause (b) above and shall cease to have been made pursuant to this clause (j) for so long as such person continues to be a Subsidiary of the Borrower;
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Subsidiaries that are not Loan Parties and Guarantees by Subsidiaries that are not Loan Parties permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, settlement of delinquent accounts against, and settlement, compromise or resolution of litigation, arbitration or other disputes with or judgments against, any other person that is not an Affiliate of the Borrower, or Investments acquired as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of an entity merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) in the case of any acquisition, merger, consolidation or amalgamation, permitted under Section 6.05 and (ii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of Holdings (or any Parent Entity);
(r) subject to the limitations of the last paragraph of Section 6.05, Investments in the Equity Interests of one or more newly formed persons that are received as consideration for the contribution by Holdings, the Borrower or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided, that (i) the fair market value of such assets, determined in good faith by the Borrower on an arms’-length basis, so contributed pursuant to this paragraph (r) shall not in the aggregate exceed $50.0 million and (ii) in respect of each such contribution, a Responsible Officer of the Borrower shall certify, in a form to be agreed upon by the Borrower and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing, (y) the fair market value (as determined in good faith by the Borrower) of the assets so contributed and (z) that the requirements of paragraph (i) of this proviso remain satisfied;
(s) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) Investments in Subsidiaries that are not Loan Parties not to exceed the greater of $220.0 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment is made, for which financial statements have been delivered pursuant to Section 5.04 plus an amount equal to any returns return of capital or sale proceeds actually received in respect of any such Investments theretofore made pursuant to this paragraph (which such amount shall not exceed u) in the amount aggregate, as valued at the fair market value (as determined in good faith by the Borrower) of such Investment (as determined above) at the time such Investment was is made;
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(x) Investments by Borrower and its Subsidiaries, including loans and advances to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount (provided that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Investments arising as a result of Permitted Securitization Financings;
(z) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(aa) purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business, to the extent such purchases and acquisitions constitute Investments;
(bb) Investments received substantially contemporaneously in exchange for Equity Interests of Holdings or any Parent Entity; provided that such Investments are not included in any determination of the Cumulative Credit;
(cc) Investments in joint ventures not in excess of the greater of $220.0 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 in the aggregate (plus an amount equal to any return of capital actually received in respect of Investments theretofore made pursuant to this paragraph (cc) in the aggregate); provided that if any Investment pursuant to this clause (cc) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, then (so long as such Investment also complies with clause (k) above if such person becomes a Subsidiary as a result of such Investment) such Investment shall thereafter be deemed to have been made pursuant to clause (b) above and shall cease to have been made pursuant to this clause (cc) for so long as such person continues to be a Subsidiary of the Borrower;
(dd) [reserved];
(ee) any franchise development advances or notes and other loans to franchisees in an aggregate amount not to exceed $75.0 million in any fiscal year; and
(ff) advances or loans to relocating employees of a customer in the relocation services business of the Borrower or any Subsidiary made in the ordinary course of business. The amount of Investments that may be made at any time pursuant to Section 6.04(b) or 6.04(j) (such Sections, the “Related Sections”) may, at the election of the Borrower, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section. For purposes of covenant compliance with this Section 6.04, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of such Investment.
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) the following Closing Date Transactions;
(collectivelyi) Investments in the Equity Interests of Holdings, “Permitted Investments”):
the Borrower or any other Restricted Subsidiary, (ii) intercompany loans to the Borrower or any other Restricted Subsidiary and (iii) Guarantees of Indebtedness expressly permitted hereunder; provided that in the case of an Investment by the Borrower or any of the other Restricted Subsidiaries in a Restricted Subsidiary that is not a Loan Party, at the time such Investment is made, no Event of Default shall have occurred and be continuing; provided, further, that, at the time of the making of any such Investment (and after giving effect thereto), the sum of (A) outstanding Investments (valued at the time of the making thereof and without giving effect to any write downs or write offs thereof) made after the Closing Date in Restricted Subsidiaries that are not Loan Parties pursuant to clause (i) plus (B) outstanding intercompany loans made after the Closing Date to Subsidiaries that are not Loan Parties pursuant to clause (ii) plus (C) outstanding Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Loan Parties pursuant to clause (iii) shall not exceed an aggregate net amount equal to the greater of (1) the Transactions $30.060.0 million and (including payment 2) 2.004.00% of Consolidated Total Assets as of the purchase consideration under end of the Merger Agreement)fiscal quarter immediately prior to the date of such Investment for which Required Financial Statements have been delivered pursuant to Section 5.04; provided, further, that (x) intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of Holdings or any of its Subsidiaries and (y) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business consistent with past practice shall not be included in calculating the limitation in this paragraph (b) at any time;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any of the other Restricted Subsidiaries of non-cash consideration for the sale or other disposition of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, managers and employees or consultants of any Parent Entity or any of its Restricted Subsidiaries (i) not to exceed $15.0 million in the aggregate at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business or (iii) in connection with the purchase of Equity Interests of any Parent Entity solely to the extent that the amount of such loans and advances shall be contributed to Holdings or any of its Restricted Subsidiaries in cash as common equity;
(f) accounts receivable, security deposits and repayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any repayments and other credits to suppliers made in the ordinary course of business;
(g) Hedge Agreements permitted by Section 6.01(c);
(h) Investments existing on, or contractually committed as of, the First Restatement Effective Date and set forth on Schedule 6.04(h) and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investments existing or committed on the First Restatement Effective Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the First Restatement Effective Date);
(i) Investments resulting from pledges and deposits under the following clauses of Section 6.02: (a), (f), (g), (k), (q), (r) and (ee);
(j) other Investments in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed at the time of the making of such Investment (and after giving effect thereto) and together with all outstanding Investments pursuant to this Section 6.04(j)(i), the greater of (A) $75.0 million and (B) 4.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which Required Financial Statements have been delivered pursuant to Section 5.04 (plus any returns of capital actually received by the respective investor in respect of Investments theretofore made by it pursuant to this clause (j)(i));
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans among Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(n);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case, in the ordinary course of business and Investments acquired as a result of a foreclosure by the Borrower or any of the other Restricted Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary of the Borrower acquired after the First Restatement Effective Date or of an entity merged into, or consolidated or amalgamated with, the Borrower or any other Restricted Subsidiary after the First Restatement Effective Date, in each case, (i) to the extent permitted under this Section 6.04, (ii) in the case of any acquisition, merger, consolidation or amalgamation, in accordance with Section 6.05, and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;
(o) acquisitions of obligations of one or more directors, officers, managers or other employees of any Parent Entity, the Borrower or any other Restricted Subsidiary in connection with such director’s, officer’s, manager’s or employee’s acquisition of Equity Interests of any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the other Restricted Subsidiaries to such directors, officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees of operating leases (for the avoidance of doubt, excluding Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case, entered into by the Borrower or any of the other Restricted Subsidiaries in the ordinary course of business;
(q) Investments to exceed $15.0 million the extent that payment for such Investments is made with Equity Interests of any Parent Entity;
(r) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(s) Investments in an the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(t) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(u) advances in the form of a repayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or any of the other Restricted Subsidiaries;
(v) Investments, including loans and advances to any Parent Entity, so long as Borrower or any of the other Restricted Subsidiaries would otherwise be permitted to make a Restricted Payment in such amount; provided that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 for all purposes of this Agreement;
(w) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(x) purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business, to the extent such purchases and acquisitions constitute Investments;
(y) Investments received substantially contemporaneously in exchange for Equity Interests of any Parent Entity;
(z) Investments in (i) joint ventures and Unrestricted Subsidiaries, (ii) the Equity Interests of one or more newly formed persons that are received in consideration of the contribution by the Borrower or any of the other Restricted Subsidiaries of assets (including Equity Interests and cash) to such person or persons and (iii) Foreign Subsidiaries, in each case, valued at the fair market value of such Investment at the time such Investment is made, in the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (ix) $25.0 45.0 million and (iiy) 0.502.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which Required Financial Statements have been delivered pursuant to Section 5.04 (calculated without regard to write downs or write offs thereof); provided that if any Investment pursuant to this clause (z) is made in any person that is not a Restricted Subsidiary at the date of the making of such Investment and such person becomes a Restricted Subsidiary after such date pursuant to another Investment (including a Subsidiary Redesignation) the amount of which, when taken together with the amount of the prior Investment, would be permitted under another provision of this Section 6.04, any Investment in such person outstanding under this Section 6.04(z) shall thereafter be deemed to have been made pursuant to such other provision and shall cease to have been made pursuant to this clause (z) for so long as such person continues to be a Restricted Subsidiary;
(aa) Investments in assets useful in the business of the Borrower and any of its Subsidiaries made with the proceeds of any Reinvestment Deferred Amount or Below Threshold Asset Sale Proceeds (each as defined in the Term Loan Credit Agreement); provided, that if the underlying Asset Sale or Recovery Event was with respect to Holdings or a Subsidiary Loan Party, then such Investment shall be consummated by a Subsidiary Loan Party;
(bb) additional Investments; provided that both immediately before such Investment is mademade and immediately after giving effect thereto, plus an the Investment Conditions shall be satisfied on a Pro Forma Basis; and
(cc) Investments in the Term Loans, the Senior Unsecured Notes and other Permitted Indebtedness of the Borrower, in each case to the extent such purchases or repurchases are not otherwise prohibited hereunder. The amount equal of Investments that may be made at any time in Subsidiaries of the Borrower that are not Subsidiary Loan Parties pursuant to any returns Section 6.04(b) or Section 6.04(j) (the “Related Sections”) may, at the election of capital or sale proceeds actually received the Borrower, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of any such Investments (which such amount one Related Section shall not exceed be treated as having been used under the amount of such Investment (as determined above) at the time such Investment was made);other Related Section.
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, another person or make or permit to exist any investment or any other interest in a designation of a Restricted Subsidiary as an Unrestricted Subsidiary of (each, a an “Investment”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions Transactions;
(b) Investments among the Borrowers and their Subsidiaries; provided that the sum of Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof, but net in the case of intercompany loans, and in any event, after giving effect to any returns, profits, distributions, and similar amounts, repayment of loans and the release of guarantees) after the Closing Date by the U.S. Borrowers and the Subsidiary Loan Parties (other than the U.K. Borrower) in (x) Subsidiaries (including payment Foreign Subsidiaries of the purchase Borrowers) that are not Subsidiary Loan Parties and (y) the U.K. Borrower shall not exceed an aggregate net amount equal to $100.0 million outstanding at any time; and provided further that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrowers and the Restricted Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(c) Permitted Investments and investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by any Borrower or any Subsidiary of promissory notes and other non-cash consideration for Dispositions permitted under the Merger AgreementSection 6.05 (excluding Section 6.05(e));
(2e) (i) loans and advances to directors, officers, directorsemployees, employees members of management or consultants of Holdings (or any Parent Entity), the any Borrower or any Restricted Subsidiary in the ordinary course of business not to exceed $15.0 10.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% advances of Consolidated Total Assets payroll payments and expenses to directors, officers, employees, members of management or consultants in the ordinary course of business;
(f) accounts receivable, notes receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers made in the ordinary course of business;
(g) Investments under Swap Agreements permitted pursuant to Section 6.01;
(h) Investments existing on, or contractually committed as of of, the date Closing Date and set forth on Schedule 6.04 and any modification, replacement, renewal or extension thereof so long as any such Investment is mademodification, plus an amount equal to any returns of capital renewal or sale proceeds actually received in respect of any such Investments (which such amount shall extension thereof does not exceed increase the amount of such Investment except by terms thereof or as otherwise permitted by this Section 6.04;
(as determined abovei) at the time such Investment was madeInvestments resulting from pledges and deposits permitted by Section 6.02(b)(iii), (f) and (g);
(j) Investments (i) constituting Permitted Business Acquisitions, (ii) in any Subsidiary in an amount required to permit such person to consummate a Permitted Business Acquisition and (iii) in any Subsidiary that is not a Subsidiary Loan Party consisting of the Equity Interests of any person who is not a Subsidiary Loan Party;
(k) Guarantees (i) permitted by Sections 6.01(k) and (ii) of leases (other than Capital Lease Obligations) or of other obligations not constituting Indebtedness, in each case in the ordinary course of business;
(l) Investments received in connection with the bankruptcy or reorganization of any person, or settlement of obligations of, or other disputes with or judgments against, or foreclosure or deed in lieu of foreclosure with respect to any Lien held as security for an obligation, in each case in the ordinary course of business;
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Wholly-Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) the following Transactions;
(collectivelyi) Investments by the Borrower or any Subsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Borrower or any Subsidiary; provided that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write downs or write offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, “Permitted Investments”):
plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) the Transactions $105.0 million and (including payment 2) 7.0% of Consolidated Total Assets as of the purchase consideration under end of the Merger Agreementfiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b)) plus (y) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(b)(y), such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, further, that (x) intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Subsidiaries, and (y) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business consistent with past practice shall not be included in calculating the limitation in this paragraph at any time;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write-write downs or write-write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any direct or indirect parent of Holdings) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements permitted pursuant to Section 6.11;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(3i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), (v) and (gg);
(j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4i) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 105.0 million and (ii) 0.507.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date any of such Investment is made, incurrence for which financial statements have been delivered pursuant to Section 5.04 (plus an amount equal to any returns of capital or sale proceeds actually received by the respective investor in respect of any investments theretofore made by it pursuant to this paragraph (j)) plus (ii) the portion, if any, of the Cumulative Credit on the date of such Investments (which election that the Borrower elects to apply to this Section 6.04(j)(ii), such amount shall not exceed election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided that if any Investment pursuant to this clause (j) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (b) above and shall cease to have been made pursuant to this clause (j) for so long as such person continues to be a Subsidiary of the Borrower;
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of an entity merged into, or consolidated or amalgamated with the Borrower or merged into or consolidated or amalgamated with a Subsidiary after the Closing Date, in each case, (i) to the extent permitted under this Section 6.04 and, (ii) in the case of any acquisition, merger or consolidation or amalgamation, in accordance with Section 6.05, and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation or amalgamation and were in existence on the date of such acquisition, merger or consolidation or amalgamation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of Holdings (or any direct or indirect parent of Holdings);
(r) Investments in the equity interests of one or more newly formed persons that are received in consideration of the contribution by Holdings, the Borrower or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided that (i) the fair market value of such assets, determined aboveon an arm’s-length basis, so contributed pursuant to this paragraph (r) shall not in the aggregate exceed $20.0 million, and (ii) in respect of each such contribution, a Responsible Officer of the Borrower shall certify, in a form to be agreed upon by the Borrower and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing, (y) the fair market value of the assets so contributed, and (z) that the requirements of paragraph (i) of this proviso remain satisfied;
(s) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) Investments in Foreign Subsidiaries not to exceed $20.0 million in the aggregate, as valued at the fair market value of such Investment at the time such Investment was is made;
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(x) Investments by Borrower and the Subsidiaries, including loans and advances to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a dividend or distribution in such amount (provided that the amount of any such Investment shall also be deemed to be a distribution under the appropriate clause of Section 6.06 for all purposes of this Cash Flow Credit Agreement);
(y) Investments arising as a result of Permitted Receivables Financings;
(z) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(aa) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business;
(bb) Investments received substantially contemporaneously in exchange for Equity Interests of the Borrower; provided that such Investments are not included in any determination of the Cumulative Credit; and
(cc) Investments in joint ventures not in excess of $20.0 million in the aggregate; provided that if any Investment pursuant to this paragraph (cc) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to paragraph (b) above and shall cease to have been made pursuant to this paragraph (cc) for so long as such person continues to be a Subsidiary of the Borrower. The amount of Investments that may be made at any time pursuant to Section 6.04(b) or 6.04(j) (such Sections, the “Related Sections”) may, at the election of the Borrower, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section.
Appears in 1 contract
Samples: Credit Agreement (Verso Paper Corp.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary Table of Contents immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), in any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) Investments by Holdings in the Transactions (including payment Equity Interests of the purchase consideration under the Merger Agreement)Borrower at any time, which Equity Interests will constitute Pledged Collateral;
(2i) Investments by the Borrower or the Subsidiaries in the Equity Interests of the Subsidiaries effective as of the Closing Date as set forth on Schedule 6.04 and Investments by the Borrower and the Subsidiaries consisting of intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary effective as of the Closing Date as set forth on Schedule 6.04; (ii) Investments by the Borrower or any Subsidiary Loan Party in any Subsidiary Loan Party; (iii) Investments by any Foreign Subsidiary that is not a Subsidiary Loan Party in any Foreign Subsidiary that is not a Subsidiary Loan Party; and (iv) Investments by the Borrower or any Subsidiary Loan Party in any Subsidiary not otherwise permitted in clause (ii) above or in any Similar Business in an aggregate amount for all such Investments made or deemed made pursuant to this Section 6.04(b)(iv) not to exceed (A) the greater of (x) $95,000,000 and (y) 5% of Consolidated Total Assets plus (B) after an applicable Bridge Financing Covenant Release, an amount not to exceed the Available Free Cash Flow Amount on the date of such Investment as elected by the Borrower to be applied to this Section 6.04(b)(iv)(B), such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Available Free Cash Flow Amount immediately prior to such election and the amount thereof elected to be so applied; provided, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations shall not be included in calculating the limitation in this Section 6.04(b) at any time;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(e) (i) loans and advances to officers, directors, employees or consultants of any Parent EntityHoldings, the Borrower or any Restricted Subsidiary in the ordinary course of business not to exceed $15.0 million 15,000,000 in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after thereof) and (ii) advances of payroll payments and expenses to employees in the date madeordinary course of business;
(i) accounts receivable arising, and trade credit granted, in the ordinary course of business, (ii) any securities received in satisfaction or partial satisfaction of defaulted accounts receivable from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and (iii) any prepayments and other credits to suppliers made in the ordinary course of business; Table of Contents
(g) Swap Agreements permitted pursuant to Section 6.12;
(h) Investments existing on the Closing Date and set forth on Schedule 6.04;
(i) Investments resulting from pledges and deposits referred to in Sections 6.02(f), (g), (k), (s) and (u);
(3j) after an applicable Bridge Financing Covenant Release, additional Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted or any of its Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the having an aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (Fair Market Value, taken together with all other Investments made pursuant to this Section 6.04(j) that are at that time outstanding (after giving effect to the sale of Investments made pursuant to this Section 6.04(j) to the extent the proceeds of such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) sale received by the Borrower and the Guarantors in Restricted its Subsidiaries that are not Guarantors; (b) the aggregate principal amount consists of Indebtedness owing to the Borrower cash and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31Permitted Investments), may not to exceed the greater of (ix) $25.0 million 110,000,000 and (iiy) 0.505% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed Borrower at the amount time of such Investment (as determined above) with the Fair Market Value of each Investment being measured at the time such Investment was mademade and without giving effect to subsequent changes in value);
(k) after an applicable Bridge Financing Covenant Release, Investments constituting Permitted Business Acquisitions;
(l) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(m) intercompany loans and other Investments between Foreign Subsidiaries that are not Loan Parties;
(n) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business;
(o) the Acquisition;
(p) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(q) Investments of a Subsidiary acquired after the Closing Date or of a person merged into or consolidated with a Subsidiary in accordance with Section 6.05 after the Closing Date to the extent that (i) such acquisition, merger or consolidation is permitted under this Section 6.04, (ii) such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation, and (iii) such Investments were in existence on the date of such acquisition, merger or consolidation; and Table of Contents
(r) Investments received substantially contemporaneously in exchange for Equity Interests of Holdings; provided, that (i) no Change of Control would result therefrom, and (ii) such Equity Interests do not constitute Disqualified Stock;
(s) Investments in joint ventures not in excess of $15,000,000 in the aggregate;
(t) Guarantees by (i) the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case, entered into by any Subsidiary Loan Party in the ordinary course of business and (ii) any Foreign Subsidiary of operating leases (other than Capital Lease Obligations) or of obligations that do not constitute Indebtedness, in each case, entered into by any Foreign Subsidiary in the ordinary course of business;
(u) Investments made with Excluded Contributions; provided, that if the Bridge Financing is outstanding, such Investments may only be made to the extent that the Bridge Financing is not required to be prepaid with such Excluded Contributions; and
(v) Investments in a Banking Subsidiary not in excess of $15,000,000.
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except: 127
(a) the following Transactions and Investments arising as a result of one or more Permitted Supplier Finance Facilities;
(collectivelyb) (i) Investments by the Company or any Subsidiary in the Equity Interests of the Company or any Subsidiary; (ii) intercompany loans from the Company or any Subsidiary to the Company or any Subsidiary; and (iii) Guarantees by the Company or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Company or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write‑downs or write‑offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Amendment Effective Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) the Transactions $100 million and (including payment 2) 4.5% of Consolidated Total Assets as of the purchase consideration under end of the Merger Agreementfiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b)); plus (y) the portion, if any, of the Cumulative Credit on the date of such election that the Company elects to apply to this Section 6.04(b)(y), such election to be specified in a written notice of a Responsible Officer of the Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time.
(c) Permitted Investments and Investments that were Permitted Investments when made;
(2d) Investments arising out of the receipt by the Company or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower Company or any Restricted Subsidiary (i) in the ordinary course of business not to exceed the greater of $15.0 25 million and 1.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such loan or advance for which financial statements have been delivered pursuant to Section 5.04, in an the aggregate principal amount at any time outstanding (calculated without regard to write-write downs or write-write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to the Company in cash as common equity; 128
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements;
(h) Investments existing on, or contractually committed as of, the Amendment Effective Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing on the Amendment Effective Date;
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), and (u);
(3j) other Investments by the Company or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write‑downs or write‑offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4i) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 225 million and (ii) 0.506.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date any of such Investment is made, incurrence for which financial statements have been delivered pursuant to Section 5.04 (plus an amount equal to any returns of capital or sale proceeds actually received by the respective investor in respect of any investments theretofore made by it pursuant to this paragraph (j)) plus (ii) the portion, if any, of the Cumulative Credit on the date of such Investments (which election that the Company elects to apply to this Section 6.04(j)(ii), such amount shall not exceed election to be specified in a written notice of a Responsible Officer of the Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(k) Investments constituting Permitted Business Acquisitions and Investments constituting the Specified Stock Purchases;
(l) intercompany loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Company as a result of a foreclosure by the Company or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of an entity merged into the Company or merged into or consolidated with a Subsidiary after the Closing Date, in each case, to the extent permitted under this Section 6.04 and, in the case of any merger or consolidation, in accordance with Section 6.05 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, 129 merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(o) acquisitions by the Company of obligations of one or more officers or other employees of Holdings, any Parent Entity, the Company or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by the Company or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Company or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Company or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of Holdings (or any Parent Entity);
(r) Investments in the equity interests of one or more newly formed persons that are received in consideration of the contribution by Holdings, the Company or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided, that (i) the fair market value of such assets, determined on an arms’-length basis, so contributed pursuant to this paragraph (r) shall not in the aggregate exceed $30 million and (ii) in respect of each such contribution, a Responsible Officer of the Company shall certify, in a form to be agreed upon by the Company and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing, (y) the fair market value of the assets so contributed and (z) that the requirements of paragraph (i) of this proviso remain satisfied;
(s) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) Investments in Foreign Subsidiaries not to exceed the greater of $75 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment (for which financial statements have been delivered pursuant to Section 5.04, in the aggregate, as determined above) valued at the fair market value of such Investment at the time such Investment was is made;
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Company or such Subsidiary; 130
(x) Investments by the Company and its Subsidiaries, including loans to any direct or indirect parent of the Company, if such Borrower or any other Subsidiary would otherwise be permitted to make a dividend or distribution in such amount (provided that the amount of any such investment shall also be deemed to be a distribution under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Investments arising as a result of Permitted Receivables Financings;
(z) Investments received substantially contemporaneously in exchange for Equity Interests of any Parent Entity; provided that such Investments are not included in any determination of the Cumulative Credit; and
(aa) Investments in joint ventures not in excess of the greater of $75 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04, in the aggregate. The amount of Investments that may be made at any time pursuant to clause (C) of the proviso of Section 6.04(b) or 6.04(j) (such Sections, the “Related Sections”) may, at the election of the Company, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section.
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) Investments in connection with the following consummation of the Exchange Transactions;
(collectivelyi) Investments by the Borrower or any Subsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Borrower or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write downs or write offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) the Transactions $150 million and (including payment 2) 5.0% of Consolidated Total Assets as of the purchase consideration under end of the Merger Agreementfiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b)), plus (y) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(b)(y); provided, further, that (x) intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Subsidiaries and (y) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business consistent with past practice shall not be included in calculating the limitation in this paragraph at any time;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed the greater of $15.0 5 million and 0.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such loan or advance for which financial statements have been delivered pursuant to Section 5.04 in an the aggregate principal amount at any time outstanding (calculated without regard to write-write downs or write-write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements permitted pursuant to Section 6.01;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(3i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), (u) and (ff);
(j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4i) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 150 million and (ii) 0.505.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date any of such Investment is made, incurrence for which financial statements have been delivered pursuant to Section 5.04 (plus an amount equal to any returns of capital or sale proceeds actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (j)) plus, (ii) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(j)(ii); provided that if any Investment pursuant to this clause (j) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investments (which Investment and such amount shall not exceed person becomes a Subsidiary of the Borrower after such date pursuant to another Investment the amount of which, when taken together with the amount of the prior Investment, would be permitted under another provision of this Section 6.04, any Investment in such Investment person outstanding under this Section 6.04(j) shall thereafter be deemed to have been made pursuant to such other provision and shall cease to have been made pursuant to this clause (j) for so long as determined abovesuch person continues to be a Subsidiary of the Borrower;
(k) at the time such Investment was madeInvestments constituting Permitted Business Acquisitions;
(l) intercompany loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower or any of the Subsidiaries as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of an entity merged into, or consolidated or amalgamated with, the Borrower or merged into or consolidated or amalgamated with a Subsidiary after the Closing Date, in each case, (i) to the extent permitted under this Section 6.04 and, (ii) in the case of any acquisition, merger, consolidation or amalgamation, in accordance with Section 6.05 and
Appears in 1 contract
Samples: Term Loan Credit Agreement
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) (i) Investments by the following Company or any Subsidiary in the Equity Interests of the Company or any Subsidiary; (collectivelyii) intercompany loans from the Company or any Subsidiary to the Company or any Subsidiary; and (iii) Guarantees by any Borrower or any Subsidiary Guarantor of Indebtedness otherwise expressly permitted hereunder of the Company or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) $300,000,000 and (2) 5% of Consolidated Total Assets (plus any return of capital actually received by the Transactions respective investors in respect of Investments theretofore made by them that reduced the amount available pursuant to this proviso); plus (including payment y) the portion, if any, of the purchase consideration under Cumulative Credit on the Merger Agreementdate of such election that the Company elects to apply to this Section 6.04(a)(y), such election to be specified in a written notice of a Responsible Officer of the Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided further, that the limitations in this paragraph shall not apply to any Investment entered into at a time when the Company is in Ratio Compliance; provided, still further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(2b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by the Company or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05;
(d) loans and advances to current and former officers, directors, employees or consultants of any Parent Entity, the Borrower Company or any Restricted Subsidiary (i) in the ordinary course of business not to exceed the greater of (x) $15.0 million 25,000,000 and (y) 0.375% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of a Parent Entity solely to the extent that the amount of such loans and advances shall be contributed to the Company in cash as common equity;
(e) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(f) Swap Agreements permitted pursuant to Section 6.10;
(g) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (g) is not increased at any time above the amount of such Investment existing on the Closing Date;
(h) Investments resulting from pledges and deposits under Section 6.02(f);
(3i) other Investments by the Company or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(41) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million 300,000,000 and (ii) 0.505% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 plus (2) the portion, if any, of the Cumulative Credit on the date of such election that the Company elects to apply to this Section 6.04(i)(2), such election to be specified in a written notice of a Responsible Officer of the Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided further, that the limitations in this paragraph shall not apply to any Investment entered into if, immediately after giving effect thereto, on a Pro Forma Basis, (i) either (A) the Loan-to-Value Ratio is equal to or less than 0.5 to 1.0 or (B) the Fixed Charge Coverage Ratio is at least 2.0 to 1.0 and (ii) the Company is in Pro Forma Compliance;
(j) Investments constituting Permitted Business Acquisitions;
(k) intercompany loans permitted by Section 6.01(e);
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Company as a result of a foreclosure by the Company or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(m) Investments of a Subsidiary acquired after the Closing Date or of a person merged into any Loan Party or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent permitted under this Section 6.04, (ii) in the case of any acquisition, merger or consolidation, in accordance with Section 6.05, and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(n) acquisitions by the Company or any Subsidiary of obligations of one or more officers or other employees of any Loan Party or any Subsidiary in connection with such officer’s or employee’s acquisition of Equity Interests of the Company or any Parent Entity, so long as no cash is actually advanced by any Loan Party or any Subsidiary to such officers or employees in connection with the acquisition of any such obligations;
(o) Guarantees by the Company or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Company or any Subsidiary in the ordinary course of business;
(p) Investments to the extent that payment for such Investments is made with Equity Interests of any Parent Entity;
(q) Investments in the Equity Interests of one or more newly formed persons that are received in consideration of the contribution by the Company or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided, that (i) the fair market value of such assets, determined on an arm’s-length basis, so contributed pursuant to this paragraph (q) shall not in the aggregate exceed the greater of (x) $25,000,000 and (y) and 0.375% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment is made, plus an amount equal for which financial statements have been delivered pursuant to any returns of capital or sale proceeds actually received Section 5.04 and (ii) in respect of each such contribution, a Responsible Officer of the Company shall certify, in a form to be agreed upon by the Company and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (y) the fair market value of the assets so contributed and (z) that the requirements of clause (i) of this proviso remain satisfied;
(r) Investments consisting of the redemption, purchase, repurchase or retirement of any such Equity Interests permitted under Section 6.06;
(s) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(which such amount shall t) Investments in Subsidiaries that are not Loan Parties not to exceed the amount greater of (x) $100,000,000 and (y) 1% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment (for which financial statements have been delivered pursuant to Section 5.04 in the aggregate, as determined above) valued at the fair market value of such Investment at the time such Investment was is made;
(u) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to this Section 6.04);
(v) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Company or such Subsidiary;
(w) Investments by Company and its Subsidiaries, including loans to any direct or indirect parent of the Company, if the Company or any other Subsidiary would otherwise be permitted to make a dividend or distribution in such amount (provided that the amount of any such Investment shall also be deemed to be a distribution under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(x) Investments if after giving effect to such Investments, the Total Leverage Ratio is equal to or less than 3.30 to 1.00;
(y) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(z) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business;
(aa) Investments received substantially contemporaneously in exchange for Equity Interests of the Company; provided that such Investments are not included in any determination of the Cumulative Credit;
(bb) Investments in joint ventures in an aggregate amount not to exceed the greater of $150,000,000 and 2.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04;
(cc) Permitted Vessel Transfers;
(dd) Investments in New Vessel Subsidiaries; and
(ee) Investments in a Similar Business in an aggregate amount (valued at the time of making thereof, and without giving effect to any write downs or any write offs thereof) not to exceed (x) the greater of $300,000,000 and 5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (ee) plus (y) the Cumulative Credit; provided that if any Investment pursuant to this paragraph (ee) is made in any person that is not a Subsidiary of the Company at the date of the making of such Investment and such person becomes a Subsidiary of the Company after such date, such Investment shall thereafter be deemed to have been made pursuant to paragraph (a) above and shall cease to have been made pursuant to this paragraph (ee) for so long as such person continues to be a Subsidiary of the Company; The amount of Investments that may be made at any time pursuant to Section 6.04(a) or (j) (such Sections, the “Related Sections”) may, at the election of the Company, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to beneficially any mergerstock, consolidation other securities or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities indebtedness of, make or permit to exist any loans or advances to or Guarantees of the obligations ofto, or make or permit to exist any investment or acquire any other interest in (each, a “Investment”)whatsoever in, any other Personperson, except any of the foregoing described in any of the following clauses:
(collectively, “a) the capital stock of the Subsidiaries held on the date hereof,
(b) Permitted Investments”):; 104 103
(1c) loans or advances to employees in the Transactions ordinary course of business in an aggregate amount to any single employee not in excess of $25,000 (including payment or, if and to the extent such loans or advances shall be used by such employee for relocation expenses, $500,000) and in an aggregate amount for all employees of the purchase consideration under Borrower and the Merger Agreement)Subsidiaries not in excess of $3,500,000 at any one time outstanding;
(2d) trade credits and Accounts arising in the ordinary course of business;
(e) securities received from insolvent Account Debtors (other than any Affiliate of the Borrower) in settlement of Accounts arising in the ordinary course of business in an aggregate amount in any year not in excess of $3,000,000;
(f) loans and or advances to officers, directors, employees or consultants of any Parent Entity, by the Borrower or any Restricted wholly owned Subsidiary not to exceed $15.0 million the Borrower or any wholly owned Subsidiary;
(g) Business Acquisitions permitted by Section 7.12;
(h) securities held by the Borrower or any of the Subsidiaries prior to the Restatement Closing Date and listed in Schedule 7.04; and
(i) (x) cash investments in Permitted Joint Ventures in an aggregate principal amount at in any time outstanding fiscal year not in excess of 50% of the maximum amount of Capital Expenditures for that fiscal year permitted under Section 7.12; and (calculated without regard to write-downs or write-offs thereof after the date made);
(3y) Investments noncash investments in Permitted Joint Ventures in an amount not to exceed aggregate amount, determined based on the Available Amount as greater of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment book value or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value thereof as certified in a certificate of all a Financial Officer of the Borrower delivered to the Agent (unless the Board of Directors of the Borrower shall determine, as evidenced by a resolution thereof, that the book value of such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since noncash investment exceeds its fair market value, in which case based on the Closing Date (with all such Investments being valued at their original fair market value thereof), not in excess of (A) $15,000,000 in any fiscal year and without taking into account subsequent increases or decreases (B) $45,000,000 in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to during the Borrower and period since the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);Original Closing Date. 105 104
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to Neither the Borrowers nor any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Restricted Subsidiary immediately prior to such merger, consolidation or amalgamation) will make any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a “Investment”), any other Person, except for the following (collectively, “Permitted Investments”):following:
(1a) Investments consisting of Cash Equivalents at the Transactions (including payment of the purchase consideration under the Merger Agreement)time made;
(2b) loans and advances to officers, directorsdirectors and employees of Borrowers or the Restricted Subsidiaries in the ordinary course of business for travel, employees or consultants entertainment, relocation and analogous ordinary business purposes;
(c) Investments outstanding on the Closing Date;
(d) Investments by the Company and its Restricted Subsidiaries in the Borrowers, Restricted Subsidiaries and Designated Restricted Entities and Investments in Indebtedness of the Borrowers, the Restricted Subsidiaries and the Designated Restricted Entities permitted by Section 8.04(f); provided that the aggregate outstanding amount of Investments by the Company and its Restricted Subsidiaries in Designated Restricted Entities pursuant to this clause (d) after the Closing Date, together with the aggregate outstanding principal amount of Indebtedness of any Parent Entity, the Borrower or any Restricted Subsidiary owed to a Designated Restricted Entity incurred pursuant to Section 8.04(f), shall not to exceed $15.0 million in an aggregate principal amount at any time outstanding the greater of (x) $300,000,000 and (y) 15.0% of Borrower Group EBITDA for the most recently ended Test Period (calculated without regard on a Pro Forma Basis) at the time of Investment;
(i) Investments consisting of extensions of credit in the nature of accounts receivable, notes receivable or other advances (including letters of credit and cash collateral) arising from the grant of trade credit or similar arrangements with suppliers, distributors, tenants, licensors or licensees in the ordinary course of business, (ii) Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to write-downs the extent reasonably necessary in order to prevent or write-offs thereof after limit loss and (iii) Investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the date madebankruptcy or insolvency of such trade creditors or customers or in settlement of delinquent or overdue accounts in the ordinary course of business;
(f) Guaranty Obligations permitted by Section 8.04 (other than pursuant to clause (j) thereof) and guarantees of obligations not constituting Indebtedness, including obligations under the Bellagio Tax Protection Agreement and the MGP XXXXX XX Tax Protection Agreement;
(g) Investments in Swap Contracts permitted under Section 8.04(b);
(3h) Investments (i) Guaranty Obligations pursuant to the MGP Master Lease and any Similar Leases, (ii) Guaranty Obligations pursuant to the Bellagio Lease and the MGP XXXXX XX Master Lease and (iii) operating leases and subleases of any real or personal property in an amount not to exceed the Available Amount as ordinary course of business (which, for the date such Investments are made; provided that no Event avoidance of Default has occurred doubt, includes the MGP Master Lease, the Bellagio Lease, the MGP XXXXX XX Master Lease and is continuing immediately prior to making such Investment or would result therefromany Similar Leases and the MGP Operating Subleases, the Bellagio Operating Subleases, the MGP XXXXX XX Operating Subleases and similar subleases under any Similar Lease);
(4i) Permitted Acquisitions (and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Subsidiaries to facilitate Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum Company shall have the ability to incur at least $1.00 of (a) additional Indebtedness under the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets Ratio Debt Basket calculated on a Pro Forma Basis as of the date any such Investment is made, plus an amount equal to any returns end of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made)most recently ended Test Period;
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation merger or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation merger or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) the following Transactions;
(collectivelyi) Investments by Intermediate Holdings or any Subsidiary in the Equity Interests of any Subsidiary; (ii) intercompany loans from Intermediate Holdings or any Subsidiary to Intermediate Holdings or any Subsidiary; and (iii) Guarantees by Intermediate Holdings or any Subsidiary of Indebtedness otherwise permitted hereunder of Intermediate Holdings or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Loan Parties, plus (B) the net amount outstanding in respect of intercompany loans made after the Closing Date by Loan Parties to Subsidiaries that are not Loan Parties pursuant to clause (ii), plus (C) the aggregate outstanding amount of Guarantees of Indebtedness after the Closing Date by Loan Parties of Subsidiaries that are not Loan Parties pursuant to clause (iii) (other than Guarantees by Loan Parties of the obligations under Secured Hedge Agreements of Subsidiaries that are not Subsidiary Loan Parties), shall not exceed (1) prior to the Transactions Exit Facility Conversion Date, $30.0 million and (including payment 2) on or after the Exit Facility Conversion Date, $5.0 million (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b)); provided, further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of Intermediate Holdings or any of the purchase consideration under Subsidiaries shall not be included in calculating the Merger Agreement)limitation in this paragraph at any time;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt of non-cash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower Intermediate Holdings or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 2.5 million in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to Intermediate Holdings or such Subsidiary in cash as common equity;
(f) Accounts, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements (excluding any Swap Agreement entered into for speculative purposes);
(3h) Investments existing on, or contractually committed as of, the DIP Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) (calculated without regard to write-downs or write-offs) is not increased at any time above the amount of such Investments existing or committed on the DIP Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the DIP Closing Date);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), (u) and (dd);
(j) other Investments by Intermediate Holdings or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed $15.0 million (plus any returns of capital actually received by the Available Amount as respective investor in respect of the date such Investments are madeinvestments theretofore made by it pursuant to this paragraph (j)); provided that no Event if any Investment pursuant to this clause (j) is made in any person that is not a Subsidiary at the date of Default has occurred and is continuing immediately prior to the making of such Investment or would result therefromand such person becomes a Subsidiary after such date, such Investment shall, at the election of Intermediate Holdings, thereafter be deemed to have been made pursuant to clause (b) above to the extent then permitted under such clause (b) and shall cease to have been made pursuant to this clause (j) for so long as such person continues to be a Subsidiary;
(4k) Investments constituting Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Business Acquisitions;
(5l) intercompany loans between Subsidiaries that are not Loan Parties and Guarantees by Subsidiaries that are not Loan Parties permitted by Section 6.01(m)(v);
(m) Investments among received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by Intermediate Holdings or any Subsidiary as a result of a foreclosure by Intermediate Holdings or such Subsidiary, as applicable, with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary that is acquired after the Closing Date or of an entity merged into or amalgamated or consolidated with Intermediate Holdings or a Subsidiary after the Closing Date, in each case, (i) to the extent the acquisition of such Subsidiary or such merger, amalgamation or consolidation, as applicable, is permitted under this Section 6.04 and, in the case of any merger, amalgamation or consolidation, permitted under Section 6.05 and (ii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(o) acquisitions by any Loan Party of obligations of one or more officers or other employees of Intermediate Holdings, any Parent Entity, such Loan Party or its subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Intermediate Holdings or any Parent Entity, so long as no cash is actually advanced by Intermediate Holdings, any Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by Intermediate Holdings or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by Intermediate Holdings or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of Intermediate Holdings or any Parent Entity;
(r) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(s) Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade arrangements with customers consistent with past practices;
(t) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to this Section 6.04);
(u) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of Intermediate Holdings or any Subsidiary;
(v) Investments by Intermediate Holdings or any of the Subsidiaries, including loans to any Parent Entity, if Intermediate Holdings or any other Subsidiary would otherwise be permitted to make a Restricted Subsidiaries Payment in such amount (including intercompany Indebtednessprovided that the amount of any such investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(w) Investments arising as a result of Permitted Receivables Financings;
(x) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(y) purchases and acquisitions of Inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business, to the extent such purchases and acquisitions constitute Investments;
(z) Investments received substantially contemporaneously in exchange for Equity Interests of Holdings or any Parent Entity;
(aa) other Investments, provided, that after giving effect to such Investment on a Pro Forma Basis, the Payment Conditions are satisfied; and
(bb) Investments arising from the conversion of the Japanese Intercompany Notes into Equity Interests in Japan Acquisition Co. The amount of Investments that may be made at any time pursuant to Section 6.04(b) or 6.04(j) (such Sections, the “Related Sections”) may, at the election of Intermediate Holdings, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the sum amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section. Notwithstanding anything to the foregoing, prior to the Exit Facility Conversion Date, no Debtor shall purchase, hold or acquire any Investment except for Sections 6.04(a), (ab), (c), (d), (e), (f), (g), (h), (i), (j), (l), (m), (n), (o), (p), (s), (t), (u), (w), (x), (y), (z) and (bb); provided that, solely with respect to the Debtors, such Investments under (1) Section 6.04(b) shall be in the ordinary course of business, (2) Section 6.04(e) shall not exceed $1.0 million in the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; outstanding and (c3) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower Section 6.04(n) shall be limited to Investments in connection with corporate and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);tax-related restructuring.
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) the following Transactions;
(collectivelyi) Investments by the Borrower or any Subsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Borrower or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write downs or write offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Closing Date by Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees after the Closing Date by Loan Parties of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) the Transactions $50,000,000 and (including payment 2) 4.5% of Consolidated Total Assets as of the purchase consideration under end of the Merger Agreementfiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 4.05 or 6.04, as applicable (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b)); plus (y) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 7.04(b)(y); provided, further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and its Subsidiaries shall not be included in calculating the limitation in this paragraph at any time.
(c) Permitted Investments and Investments that were Permitted Investments when made;
(2d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 7.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed the greater of $15.0 million 15,000,000 and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such loan or advance for which financial statements have been delivered pursuant to Section 4.05 or 6.04, as applicable, in an the aggregate principal amount at any time outstanding (calculated without regard to write-write downs or write-write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Contracts permitted hereunder;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 7.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or contractually committed to on the Closing Date;
(i) Investments resulting from pledges and deposits under Sections 7.02(f), (g), (k), (r), (s) and (u);
(3j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4i) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million 50,000,000 and (ii) 0.504.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date any of such Investment is madeincurrence for which financial statements have been delivered pursuant to Section 4.05 or 6.04, as applicable (plus an amount equal to any returns of capital or sale proceeds actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (j)) plus (ii) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 7.04(j)(ii) provided that if any such Investments (which such amount shall Investment pursuant to this Section 7.04(j) is made in any person that is not exceed a Subsidiary of the amount Borrower at the date of the making of such Investment (as determined above) at and such person becomes a Subsidiary of the time Borrower after such date, such Investment was made)shall thereafter be deemed to have been made pursuant to Section 7.04(b) and shall cease to have been made pursuant to this Section 7.04(j) for so long as such person continues to be a Subsidiary of the Borrower;
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interestscapital stock, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations ofto, or make or permit to exist any investment or any other interest in (each, a “Investment”)in, any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) investments (i) existing on the Transactions (including payment date hereof in the Capital Stock of the purchase Subsidiaries; (ii) by Holdings in the common stock of the Borrower; (iii) by the Borrower or any Subsidiary in any Subsidiary Guarantor; (iv) by any Loan Party or any Subsidiary in Foreign Subsidiaries, Non-Wholly-Owned Subsidiaries and joint ventures in which the Borrower or a Subsidiary owns Capital Stock, provided that the aggregate amount of Non-Guarantor Expenditures outstanding at any time, including the aggregate amount of the consideration under (whether cash or property, as valued at the Merger Agreement)time each such investment is made) for all investments made pursuant to this clause (iv) and all Non-Guarantor Expenditures made prior to the Closing Date that remain outstanding, does not exceed $13,000,000 in the aggregate;
(2b) Permitted Liquid Investments, together with investments that were Permitted Liquid Investments when made pursuant to clauses (a) through (e) of the definition thereof but only until the maturity of such investments and excluding any extensions, renewals or rollovers thereof;
(c) investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the sale of assets, provided that such consideration (if the stated amount or value thereof is in excess of $500,000) is pledged upon receipt pursuant to the Pledge Agreement to the extent required thereby;
(d) Indebtedness among Loan Parties and their Subsidiaries permitted under Section 6.1;
(e) loans and advances to officers, directors, directors and employees or consultants (and partnerships for their benefit) of any Parent EntityLoan Party, whether in respect of salary advances, for payment of taxes or otherwise, provided, however, that the aggregate amount of such loans and advances, including those outstanding on the Closing Date and refinancings thereof, shall not exceed $2,000,000 at any time;
(i) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and (ii) prepayments and other credits to suppliers made in the ordinary course of business which is consistent with the past practices of Holdings, the Borrower and the Subsidiaries;
(g) investments existing on the Closing Date and set forth on Schedule 6.4;
(h) investments resulting from pledges and deposits referred to in Section 6.2(e) or (f);
(i) investments permitted by Section 6.5(a) and Section 6.16(b);
(j) loans and other investments by the Borrower or any Restricted Subsidiary of its Subsidiaries to customers made in connection with entering into a Permitted Service Contract; provided, however, that such loans and other investments may not to exceed $15.0 million 10,000,000 in an any Annual Fiscal Period or $20,000,000 in aggregate principal amount outstanding at any time outstanding (calculated without regard such loans to write-downs be included in the calculation of Consolidated Service Contract Capital Expenditures); and
(k) investments (other than loans and advances to officers, directors or write-offs thereof after employees of Holdings and its Subsidiaries) funded with proceeds from the date madeissuance of Capital Stock of Holdings described in clause (b) of the first parenthetical phrase of the definition of "Equity Offering Proceeds", to the extent such proceeds are not required to prepay the Obligations under Section 2.10, and are not applied to Capital Expenditures under Section 6.15 or investments permitted under Section 6.5(a);
(3l) Investments investments in an amount not to exceed assets useful in the Available Amount as business of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided funded with proceeds that would constitute Asset Sale Proceeds but for the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as first proviso of the date any such Investment is madedefinition thereof, plus an amount equal to any returns or that would constitute Insurance Proceeds but for the first proviso of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);definition thereof.
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a “Investment”), any other Person, except the following (collectively, “Permitted Investments”):
(1) the Transactions (including payment of the purchase consideration under the Merger Agreement);
(2) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 25.0 million in an aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 50.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);
Appears in 1 contract
Samples: Term Loan Credit Agreement (Neiman Marcus Group LTD Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, another person or make or permit to exist any investment or any other interest in a designation of a Restricted Subsidiary as an Unrestricted Subsidiary of (each, a an “Investment”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions Transactions;
(b) Investments among the Borrowers and their Subsidiaries; provided that the sum of Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof, but net in the case of intercompany loans, and in any event, after giving effect to any returns, profits, distributions, and similar amounts, repayment of loans and the release of guarantees) after the Closing Date by the Borrowers and the Subsidiary Loan Parties in Subsidiaries (including payment Foreign Subsidiaries of the purchase Borrowers) that are not Subsidiary Loan Parties shall not exceed an aggregate net amount equal to $50.0 million outstanding at any time; and provided further that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrowers and the Restricted Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(c) Permitted Investments and investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by any Borrower or any Subsidiary of promissory notes and other non-cash consideration for Dispositions permitted under the Merger AgreementSection 6.05 (excluding Section 6.05(e));
(2e) (i) loans and advances to directors, officers, directorsemployees, employees members of management or consultants of Holdings (or any Parent Entity), the any Borrower or any Restricted Subsidiary in the ordinary course of business not to exceed $15.0 10.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% advances of Consolidated Total Assets payroll payments and expenses to directors, officers, employees, members of management or consultants in the ordinary course of business;
(f) accounts receivable, notes receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers made in the ordinary course of business;
(g) Investments under Swap Agreements permitted pursuant to Section 6.01;
(h) Investments existing on, or contractually committed as of of, the date Closing Date and set forth on Schedule 6.04 and any modification, replacement, renewal or extension thereof so long as any such Investment is mademodification, plus an amount equal to any returns of capital renewal or sale proceeds actually received in respect of any such Investments (which such amount shall extension thereof does not exceed increase the amount of such Investment except by terms thereof or as otherwise permitted by this Section 6.04;
(as determined abovei) at the time such Investment was madeInvestments resulting from pledges and deposits permitted by Section 6.02(b)(iii), (f) and (g);
(j) Investments (i) constituting Permitted Business Acquisitions, (ii) in any Subsidiary in an amount required to permit such person to consummate a Permitted Business Acquisition and (iii) in any Subsidiary that is not a Subsidiary Loan Party consisting of the Equity Interests of any person who is not a Subsidiary Loan Party;
(k) Guarantees (i) permitted by Sections 6.01(k) and (ii) of leases (other than Capital Lease Obligations) or of other obligations not constituting Indebtedness, in each case in the ordinary course of business;
(l) Investments received in connection with the bankruptcy or reorganization of any person, or settlement of obligations of, or other disputes with or judgments against, or foreclosure or deed in lieu of foreclosure with respect to any Lien held as security for an obligation, in each case in the ordinary course of business;
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) (i) Investments by the following Company or any Subsidiary in the Equity Interests of the Company or any Subsidiary; (collectivelyii) intercompany loans from the Company or any Subsidiary to the Company or any Subsidiary; and (iii) Guarantees by the Borrower or the Subsidiary Guarantor of Indebtedness otherwise expressly permitted hereunder of the Company or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) $[*] and (2) [*]% of Consolidated Total Assets (plus any return of capital actually received by the Transactions respective investors in respect of Investments theretofore made by them that reduced the amount available pursuant to this paragraph (including payment a)proviso; plus (y) the portion, if any, of the purchase consideration under Cumulative Credit on the Merger Agreementdate of such election that the Company elects to apply to this Section 6.04(a)(y), such election to be specified in a written notice of a Responsible Officer of the Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided further, that the limitations in this paragraph shall not apply to any Investment entered into at a time when the Company is in Ratio Compliance; provided, still further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(2b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by the Company or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05;
(d) loans and advances to current and former officers, directors, employees or consultants of any Parent Entity, the Borrower Company or any Restricted Subsidiary (i) in the ordinary course of business not to exceed the greater of (x) $15.0 million [*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of a Parent Entity solely to the extent that the amount of such loans and advances shall be contributed to the Company in cash as common equity;
(e) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(f) Swap Agreements permitted pursuant to Section 6.10;
(g) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (g) is not increased at any time above the amount of such Investment existing on the Closing Date;
(h) Investments resulting from pledges and deposits under Section 6.02(f);
(3i) other Investments by the Company or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(41) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million [*] and (ii) 0.50[*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 plus (2) the portion, if any, of the Cumulative Credit on the date of such election that the Company elects to apply to this Section 6.04(i)(2), such election to be specified in a written notice of a Responsible Officer of the Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided further, that the limitations in this paragraph shall not apply to any Investment entered into if, immediately after giving effect thereto, on a Pro Forma Basis, (i) either (A) the Loan-to-Value Ratio is equal to or less than [*] to 1.0 or (B) the Fixed Charge Coverage Ratio is at least [*] to 1.0 and (ii) the Company is in Pro Forma Compliance;
(j) Investments constituting Permitted Business Acquisitions;
(k) intercompany loans permitted by Section 6.01(e);
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Company as a result of a foreclosure by the Company or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(m) Investments of a Subsidiary acquired after the Closing Date or of a person merged into any Loan Party or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent permitted under this Section 6.04, (ii) in the case of any acquisition, merger or consolidation, in accordance with Section 6.05, and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(n) acquisitions by the Company or any Subsidiary of obligations of one or more officers or other employees of any Loan Party or any Subsidiary in connection with such officer’s or employee’s acquisition of Equity Interests of the Company or any Parent Entity, so long as no cash is actually advanced by any Loan Party or any Subsidiary to such officers or employees in connection with the acquisition of any such obligations;
(o) Guarantees by the Company or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Company or any Subsidiary in the ordinary course of business;
(p) Investments to the extent that payment for such Investments is made with Equity Interests of any Parent Entity;
(q) Investments in the Equity Interests of one or more newly formed persons that are received in consideration of the contribution by the Company or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided, that (i) the fair market value of such assets, determined on an arm’s-length basis, so contributed pursuant to this paragraph (q) shall not in the aggregate exceed the greater of (x) $[*] and (y) and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment is made, plus an amount equal for which financial statements have been delivered pursuant to any returns of capital or sale proceeds actually received Section 5.04 and (ii) in respect of each such contribution, a Responsible Officer of the Company shall certify, in a form to be agreed upon by the Company and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (y) the fair market value of the assets so contributed and (z) that the requirements of clause (i) of this proviso remain satisfied;
(r) Investments consisting of the redemption, purchase, repurchase or retirement of any such Equity Interests permitted under Section 6.06;
(s) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(which such amount shall t) Investments in Subsidiaries that are not Loan Parties not to exceed the amount greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment (for which financial statements have been delivered pursuant to Section 5.04 in the aggregate, as determined above) valued at the fair market value of such Investment at the time such Investment was is made;
(u) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to this Section 6.04);
(v) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Company or such Subsidiary;
(w) Investments by Company and its Subsidiaries, including loans to any direct or indirect parent of the Company, if the Company or any other Subsidiary would otherwise be permitted to make a dividend or distribution in such amount (provided that the amount of any such Investment shall also be deemed to be a distribution under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(x) Investments if after giving effect to such Investments, the Total Leverage Ratio is equal to or less than 3.30 to 1.00;
(y) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(z) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business;
(aa) Investments received substantially contemporaneously in exchange for Equity Interests of the Company; provided that such Investments are not included in any determination of the Cumulative Credit;
(bb) Investments in joint ventures in an aggregate amount not to exceed the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04;
(cc) Permitted Vessel Transfers;
(dd) Investments in New Vessel Subsidiaries; and
(ee) Investments in a Similar Business in an aggregate amount (valued at the time of making thereof, and without giving effect to any write downs or any write offs thereof) not to exceed (x) the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (ee) plus (y) the Cumulative Credit; provided that if any Investment pursuant to this paragraph (ee) is made in any person that is not a Subsidiary of the Company at the date of the making of such Investment and such person becomes a Subsidiary of the Company after such date, such Investment shall thereafter be deemed to have been made pursuant to paragraph (a) above and shall cease to have been made pursuant to this paragraph (ee) for so long as such person continues to be a Subsidiary of the Company; The amount of Investments that may be made at any time pursuant to Section 6.04(a) or (j) (such Sections, the “Related Sections”) may, at the election of the Company, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1i) Investments by any Borrower or any Subsidiary in the Transactions Equity Interests of any Borrower or any Subsidiary; (including payment ii) intercompany loans from any Borrower or any Subsidiary to any Borrower or any Subsidiary; and (iii) Guarantees by any Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of any Borrower or any Subsidiary, provided that the sum of (A) Investments (valued at the time of the purchase consideration under making thereof and without giving effect to any write downs or write offs thereof) made after the Merger AgreementClosing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Closing Date by Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees after the Closing Date by Loan Parties of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to $5,000,000 (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b));
(2b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by any Borrower or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 7.05;
(d) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 million in an aggregate principal amount 1,000,000 at any time outstanding (calculated without regard to write-write downs or write-write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of the Holdcos (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to such Borrower in cash as common equity;
(e) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(f) Swap Contracts permitted hereunder;
(g) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 7.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (g) is not increased at any time above the amount of such Investment existing or contractually committed to on the Closing Date;
(h) Investments resulting from pledges and deposits under Sections 7.02(f), (g), (k), (r), (s) and (u);
(3i) other Investments in an amount not to exceed by any Borrower or any Subsidiary if (i) the Available Amount as of the date such Investments are made; provided that Payment Conditions shall have been met and (ii) no Event of Default has shall have occurred and is be continuing immediately prior to making such Investment or would result therefrom;
(4j) Investments constituting Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Business Acquisitions;
(5k) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted loans between Subsidiaries that are not GuarantorsSubsidiary Loan Parties and Guarantees by such Subsidiaries to the extent permitted by Section 7.01(l);
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by any Borrower as a result of a foreclosure by such Borrower or any of its Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(m) Investments of a Subsidiary acquired after the Closing Date or of an entity merged into any Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, to the extent permitted under this Section 7.04 and, in the case of any acquisition, merger, consolidation or amalgamation, in accordance with Section 7.05 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;
(n) acquisitions by any Borrower of obligations of one or more current or former officers, directors or other employees of the Holdcos, any Parent Entity, such Borrower or its Subsidiaries and their respective estates, spouses or former spouses in connection with such person’s acquisition of Equity Interests of the Holdcos or any Parent Entity, so long as no cash is actually advanced by such Borrower or any of its Subsidiaries to such persons in connection with the acquisition of any such obligations;
(o) Guarantees by any Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by any Borrower or any Subsidiary in the ordinary course of business;
(p) Investments to the extent that payment for such Investments is made with Equity Interests of the Holdcos (or any Parent Entity);
(q) Investments in the Equity Interests of one or more newly formed persons that are received in consideration of the contribution by the Holdcos, the applicable Borrower or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided that (bi) the fair market value (as determined in good faith by such Borrower) of such assets, determined on an arms’-length basis, so contributed pursuant to this paragraph (q) shall not in the aggregate principal amount exceed $1,000,000 and (ii) in respect of Indebtedness owing to each such contribution, a Responsible Officer of the applicable Borrower shall certify (x) no Default or Event of Default shall have occurred and be continuing or would result from such contribution, (y) the Guarantors fair market value (as determined in good faith by such Borrower) of the assets so contributed and (z) that the requirements of clause (i) of this proviso remain satisfied;
(r) Investments consisting of Restricted Payments permitted under Section 7.06;
(s) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(t) Investments in Subsidiaries that are not Guarantors Loan Parties not to exceed $1,000,000 at any time outstanding; and outstanding (c) the aggregate principal amount plus any return of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed capital actually received by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received respective investors in respect of any such Investments theretofore made by them pursuant to this paragraph (which such amount shall not exceed u)), as valued at the amount fair market value (as determined in good faith by the applicable Borrower) of such Investment (as determined above) at the time such Investment was is made;
(u) Investments consisting of the licensing or contribution of intellectual property licenses pursuant to joint marketing arrangements with other persons;
(v) Guarantees permitted under Section 7.01 (except to the extent such Guarantee is expressly subject to Section 7.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the applicable Borrower or Subsidiary;
(x) Investments by any Borrower and its Subsidiaries, including loans and advances, to any direct or indirect parent of such Borrower, if such Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount (provided that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 7.06 for all purposes of this Agreement);
(y) Investments received substantially contemporaneously in exchange for Equity Interests of the Holdcos or any Parent Entity;
(z) Investments in joint ventures not in excess of $5,000,000 in the aggregate (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this clause (z)); provided that if any Investment pursuant to this clause (z) is made in any person that is not a Subsidiary of any Borrower at the date of the making of such Investment and such person becomes a Subsidiary of any Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to Section 7.04(a) and shall cease to have been made pursuant to this clause (z) for so long as such person continues to be a Subsidiary of a Borrower;
(aa) Reasonable and customary Investments (including, to the extent reasonable and customary, capital contributions, intercompany debt or other extensions of credit) in any Receivables Subsidiary in connection with any Qualified Receivables Financing; and
(bb) Industrial revenue bonds or other similar municipal bonds issued to any Borrower or any Subsidiary pursuant to arrangements of the type pursuant to which the industrial revenue bond set forth on Schedule 7.04Industrial Revenue Bond was issued, provided that any consideration paid by any Borrower or any Subsidiary for such bonds is applied solely for the acquisition, lease, construction, repair, replacement or improvement of property owned or leased (or to be owned or leased) by any Borrower or any Subsidiary and to pay costs and expenses in connection with such arrangements.
Appears in 1 contract
Samples: Credit Agreement (Constellium SE)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) (i) Investments by the following Company or any Subsidiary in the Equity Interests of the Company or any Subsidiary; (collectivelyii) intercompany loans from the Company or any Subsidiary to the Company or any Subsidiary; and (iii) Guarantees by any Borrower or any Subsidiary Guarantor of Indebtedness otherwise expressly permitted hereunder of the Company or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) $[*] and (2) [*]% of Consolidated Total Assets (plus any return of capital actually received by the Transactions respective investors in respect of Investments theretofore made by them that reduced the amount available pursuant to this paragraph (including payment aproviso); plus (y) the portion, if any, of the purchase consideration under Cumulative Credit on the Merger Agreementdate of such election that the Company elects to apply to this Section 6.04(a)(y), such election to be specified in a written notice of a Responsible Officer of the Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided further, that the limitations in this paragraph shall not apply to any Investment entered into at a time when the Company is in Ratio Compliance; provided, still further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(2b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by the Company or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05;
(d) loans and advances to current and former officers, directors, employees or consultants of any Parent Entity, the Borrower Company or any Restricted Subsidiary (i) in the ordinary course of business not to exceed the greater of (x) $15.0 million [*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of a Parent Entity solely to the extent that the amount of such loans and advances shall be contributed to the Company in cash as common equity;
(e) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(f) Swap Agreements permitted pursuant to Section 6.10;
(g) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (g) is not increased at any time above the amount of such Investment existing on the Closing Date;
(h) Investments resulting from pledges and deposits under Section 6.02(f);
(3i) other Investments by the Company or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(41) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million [*] and (ii) 0.50[*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 plus (2) the portion, if any, of the Cumulative Credit on the date of such election that the Company elects to apply to this Section 6.04(i)(2), such election to be specified in a written notice of a Responsible Officer of the Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided further, that the limitations in this paragraph shall not apply to any Investment entered into if, immediately after giving effect thereto, on a Pro Forma Basis, (i) either (A) the Loan-to-Value Ratio is equal to or less than [*] to 1.0 or (B) the Fixed Charge Coverage Ratio is at least [*] to 1.0 and (ii) the Company is in Pro Forma Compliance;
(j) Investments constituting Permitted Business Acquisitions;
(k) intercompany loans permitted by Section 6.01(e);
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Company as a result of a foreclosure by the Company or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(m) Investments of a Subsidiary acquired after the Closing Date or of a person merged into any Loan Party or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent permitted under this Section 6.04, (ii) in the case of any acquisition, merger or consolidation, in accordance with Section 6.05, and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(n) acquisitions by the Company or any Subsidiary of obligations of one or more officers or other employees of any Loan Party or any Subsidiary in connection with such officer’s or employee’s acquisition of Equity Interests of the Company or any Parent Entity, so long as no cash is actually advanced by any Loan Party or any Subsidiary to such officers or employees in connection with the acquisition of any such obligations;
(o) Guarantees by the Company or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Company or any Subsidiary in the ordinary course of business;
(p) Investments to the extent that payment for such Investments is made with Equity Interests of any Parent Entity;
(q) Investments in the Equity Interests of one or more newly formed persons that are received in consideration of the contribution by the Company or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided, that (i) the fair market value of such assets, determined on an arm’s-length basis, so contributed pursuant to this paragraph (q) shall not in the aggregate exceed the greater of (x) $[*] and (y) and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment is made, plus an amount equal for which financial statements have been delivered pursuant to any returns of capital or sale proceeds actually received Section 5.04 and (ii) in respect of each such contribution, a Responsible Officer of the Company shall certify, in a form to be agreed upon by the Company and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (y) the fair market value of the assets so contributed and (z) that the requirements of clause (i) of this proviso remain satisfied;
(r) Investments consisting of the redemption, purchase, repurchase or retirement of any such Equity Interests permitted under Section 6.06;
(s) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(which such amount shall t) Investments in Subsidiaries that are not Loan Parties not to exceed the amount greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment (for which financial statements have been delivered pursuant to Section 5.04 in the aggregate, as determined above) valued at the fair market value of such Investment at the time such Investment was is made;
(u) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to this Section 6.04);
(v) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Company or such Subsidiary;
(w) Investments by Company and its Subsidiaries, including loans to any direct or indirect parent of the Company, if the Company or any other Subsidiary would otherwise be permitted to make a dividend or distribution in such amount (provided that the amount of any such Investment shall also be deemed to be a distribution under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(x) Investments if after giving effect to such Investments, the Total Leverage Ratio is equal to or less than 3.30 to 1.00;
(y) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(z) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business;
(aa) Investments received substantially contemporaneously in exchange for Equity Interests of the Company; provided that such Investments are not included in any determination of the Cumulative Credit;
(bb) Investments in joint ventures in an aggregate amount not to exceed the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04;
(cc) Permitted Vessel Transfers;
(dd) Investments in New Vessel Subsidiaries; and
(ee) Investments in a Similar Business in an aggregate amount (valued at the time of making thereof, and without giving effect to any write downs or any write offs thereof) not to exceed (x) the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (ee) plus (y) the Cumulative Credit; provided that if any Investment pursuant to this paragraph (ee) is made in any person that is not a Subsidiary of the Company at the date of the making of such Investment and such person becomes a Subsidiary of the Company after such date, such Investment shall thereafter be deemed to have been made pursuant to paragraph (a) above and shall cease to have been made pursuant to this paragraph (ee) for so long as such person continues to be a Subsidiary of the Company; The amount of Investments that may be made at any time pursuant to Section 6.04(a) or (j) (such Sections, the “Related Sections”) may, at the election of the Company, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, another person or make or permit to exist any investment or any other interest in a designation of a Restricted Subsidiary as an Unrestricted Subsidiary of (each, a an “Investment”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions Transactions;
(b) Investments among the Borrowers and their Subsidiaries; provided that the sum of Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof, but net in the case of intercompany loans, and in any event, after giving effect to any returns, profits, distributions, and similar amounts, repayment of loans and the release of guarantees) after the Closing Date by the Borrowers and the Subsidiary Loan Parties in Subsidiaries (including payment Foreign Subsidiaries of the purchase Borrowers) that are not Subsidiary Loan Parties shall not exceed an aggregate net amount equal to $50.0 million outstanding at any time; and provided further that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrowers and the Restricted Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(c) Permitted Investments and investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by any Borrower or any Subsidiary of promissory notes and other non-cash consideration for Dispositions permitted under the Merger AgreementSection 6.05 (excluding Section 6.05(e));
(2e) (i) loans and advances to directors, officers, directorsemployees, employees members of management or consultants of Holdings (or any Parent Entity), the any Borrower or any Restricted Subsidiary in the ordinary course of business not to exceed $15.0 10.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% advances of Consolidated Total Assets payroll payments and expenses to directors, officers, employees, members of management or consultants in the ordinary course of business;
(f) accounts receivable, notes receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers made in the ordinary course of business;
(g) Investments under Swap Agreements permitted pursuant to Section 6.01;
(h) Investments existing on, or contractually committed as of of, the date Closing Date and set forth on Schedule 6.04 and any modification, replacement, renewal or extension thereof so long as any such Investment is mademodification, plus an amount equal to any returns of capital renewal or sale proceeds actually received in respect of any such Investments (which such amount shall extension thereof does not exceed increase the amount of such Investment except by terms thereof or as otherwise permitted by this Section 6.04;
(i) Investments resulting from pledges and deposits permitted by Section 6.02(b)(iii), (f) and (g);
(j) Investments (i) constituting Permitted Business Acquisitions, (ii) in any Subsidiary in an amount required to permit such person to consummate a Permitted Business Acquisition and (iii) in any Subsidiary that is not a Subsidiary Loan Party consisting of the Equity Interests of any person who is not a Subsidiary Loan Party;
(k) Guarantees (i) permitted by Sections 6.01(k) and (ii) of leases (other than Capital Lease Obligations) or of other obligations not constituting Indebtedness, in each case in the ordinary course of business;
(l) Investments received in connection with the bankruptcy or reorganization of any person, or settlement of obligations of, or other disputes with or judgments against, or foreclosure or deed in lieu of foreclosure with respect to any Lien held as determined abovesecurity for an obligation, in each case in the ordinary course of business;
(m) Investments of any Borrower or any Restricted Subsidiary acquired after the Closing Date or of a person merged into or consolidated with a Borrower or a Restricted Subsidiary, in each case, in accordance with Section 6.05 (other than Section 6.05(e)), after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation and any modification, replacement, renewal or extension thereof so long as any such modification, renewal or extension thereof does not increase the amount of such Investment except as otherwise permitted by this Section 6.04;
(n) acquisitions by the Borrowers of obligations of one (1) or more directors, officers, employees, members or management or consultants of Holdings, the Borrowers or their Subsidiaries in connection with such person’s acquisition of Equity Interests of Holdings (or its Parent Entity), so long as no cash is actually advanced by the Borrowers or any of their Subsidiaries to such persons in connection with the acquisition of any such obligations;
(o) Investments in Holdings in amounts and for purposes for which Restricted Payments to Holdings are permitted under Section 6.06;
(p) Investments consisting of Indebtedness, Liens, Sale and Lease-Back Transactions, mergers, consolidations, Dispositions, Restricted Payments, Affiliate transactions and prepayments and repurchases of Indebtedness permitted under Section 6.01, 6.02, 6.03, 6.05, 6.06, 6.07(b)(iv), 6.07(b)(viii), 6.07(b)(xvii), 6.09 and 9.04(f) and (i);
(q) Investments by any Borrower or any Restricted Subsidiary in an outstanding aggregate amount (valued at the time such Investment was madeof the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed $50.0150.0 million, (plus any returns, profits, distributions and similar amounts, repayments of loans and the release of guarantees in respect of Investments theretofore made by it pursuant to this paragraph (q);
(r) other Investments by any Borrower or any Restricted Subsidiary so long as the Investment Conditions are satisfied;
(s) Investments in the ordinary course of business consisting of (A) endorsements for collection or deposit or (B) customary trade arrangements with customers;
(t) Investments to the extent the consideration paid therefor consists solely of Equity Interests of the applicable person or any direct or indirect parent thereof;
(u) Investments made in the ordinary course of business in connection with obtaining, maintaining or renewing client and customer contracts and loans or advances made to, and guarantees with respect to obligations of, distributors, suppliers, licensors and licensees in the ordinary course of business;
(v) Investments made by any Restricted Subsidiary that is not a Loan Party to the extent such Investments are made with the proceeds received by such Restricted Subsidiary from an Investment made by a Loan Party in such Restricted Subsidiary pursuant to this Section 6.04; and
(w) Investments in, or relating to, a Special Purpose Subsidiary that, in the good faith determination of the Lead Borrower, are necessary or advisable to effect any Receivables Facility permitted by Section 6.01(z) or any Investment in an entity which is not a Restricted Subsidiary to which a Restricted Subsidiary sells accounts receivable in connection with a Receivables Facility permitted by Section 6.01(z).
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions (including payment of the purchase consideration under the Merger Agreement)[Reserved];
(2i) Investments by the Borrower or any Subsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Borrower or any Subsidiary; provided, that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to $20.0 million; provided, further, that (x) intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Subsidiaries and (y) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business consistent with past practice shall not be included in calculating the limitation in this paragraph at any time;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 10.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements; 134 QDI – A&R Credit Agreement (2014)
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this paragraph (h) is not increased at any time above the amount of such Investment existing on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), (u) and (dd);
(j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed $40.0 million (plus any returns of capital actually received by the Available Amount as respective investor in respect of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior investments theretofore made by it pursuant to making such Investment or would result therefrom;
this paragraph (4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtednessj)); provided that the sum if any Investment pursuant to this clause (j) is made in any person that is not a Subsidiary of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Guarantors in Restricted Subsidiaries that are not Guarantors; Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (b) the aggregate principal amount of Indebtedness owing above and shall cease to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments have been made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of this clause (ij) $25.0 million and (ii) 0.50% of Consolidated Total Assets for so long as such person continues to be a Subsidiary of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made)Borrower;
Appears in 1 contract
Samples: Credit Agreement
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interestscapital stock, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations ofto, or make or permit to exist any investment or any other interest in (eachcollectively, a “Investment”an "INVESTMENT"), any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) Permitted Investments and Investments that were Permitted Investments when made;
(b) Investments by Holdings in the Transactions Borrower, Investments by a Restricted Subsidiary in a Domestic Restricted Subsidiary and Investments by Foreign Restricted Subsidiaries in other Foreign Restricted Subsidiaries;
(including payment c) Investments arising out of the purchase receipt by the Borrower of noncash consideration for the sale of assets permitted under Section 6.08 provided that such consideration (if the Merger stated amount or value thereof is in excess of $1,000,000) is pledged upon receipt pursuant to the Pledge Agreement;
(d) intercompany loans permitted to be incurred as Indebtedness under Section 6.01(d);
(2e) Investments by a wholly-owned Restricted Subsidiary constituting Permitted Business Acquisitions;
(f) (i) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 million in an aggregate principal amount 300,000 at any time outstanding to any one employee and not to exceed $2,000,000 in the aggregate at any time outstanding and (calculated without regard ii) advances of payroll payments and expenses to write-downs or write-offs thereof after employees in the date made)ordinary course of business;
(3g) Investments accounts receivable arising and trade credit granted in an amount not the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior extent reasonably necessary in order to making such Investment prevent or would result therefromlimit loss;
(4h) Permitted Acquisitions an Investment by the Borrower or any of the Restricted Subsidiaries in any Finance Subsidiary that the Borrower is incorporating, but only to the extent necessary to incorporate such Finance Subsidiary and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired acquire its capital stock and subordinated indebtedness in connection with Permitted Acquisitionssales of receivables, all with the minimum capitalization necessary;
(5i) intercompany investments, other than investments listed in clauses (a) through (h) of this Section, existing on the Closing Date and set forth on Schedule 6.07;
(j) the ESOP Loans;
(k) Investments among the Borrower sole consideration for which by Holdings and the Restricted Subsidiaries is capital stock of Holdings PROVIDED that, after giving effect thereto, no Default or Event of Default under paragraph (m) of Article VII shall have occurred;
(l) if no Default or Event of Default exists immediately before or after giving effect to such Investment, other Investments, including intercompany Indebtedness); joint ventures and Investments in Unrestricted Subsidiaries, provided that the sum of (ai) the aggregate fair market value of consideration for all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being whether cash or property, as valued at their original fair market value the time of such Investment) does not exceed (net of any return representing return of capital of (but not return on) any such Investment) at any time, together with the amount of outstanding intercompany loans under Section 6.01(d)(iv) and without taking into account subsequent increases outstanding Indebtedness under Section 6.01(r), $200,000,000 PLUS the Foreign Currency Fluctuation Amount in the aggregate and (ii) the consideration for Investments in Unrestricted Subsidiaries (whether cash or decreases property, as valued at the time of such Investment) does not exceed (net of any return representing return of capital of (but not return on) any such Investment) at any time $75,000,000 in valuethe aggregate;
(m) Investments resulting from pledges and deposits referred to in Section 6.04(f); and
(n) the purchase of any JPS Automotive Senior Notes not put pursuant to the change of control provision relating thereto, provided that the aggregate premium paid by and interest purchased by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of its subsidiaries for all JPS Automotive Senior Notes outstanding on the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount hereof shall not exceed $20,000,000. None of Holdings and the amount Restricted Subsidiaries may make any Investment in Unrestricted Subsidiaries except as described in the definition of such Investment (as determined above) at the time such Investment was made);"Unrestricted Subsidiaries" set forth in Section 1.01.
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold (i) Purchase or acquire (including pursuant to any merger, consolidation merger or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation merger or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofof any other person, (ii) make any capital contribution or permit to exist any loans or advances to or Guarantees of the obligations ofIndebtedness of any other person (other than in respect of (A) intercompany liabilities incurred in connection with the cash management, tax and accounting operations of the Parent Borrower and its Subsidiaries and (B) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll overs or extensions of terms) and made in the ordinary course of business), or make (iii) purchase or permit to exist any investment otherwise acquire, in one transaction or any other interest in a series of related transactions, (eachx) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, a line of business or division of such person (each of the foregoing, an “Investment”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) [Reserved];
(b) (i) Investments by the Parent Borrower or any Subsidiary in the Equity Interests of the Parent Borrower or any Subsidiary; (ii) intercompany loans from the Parent Borrower or any Subsidiary to the Parent Borrower or any Subsidiary; and (iii) Guarantees by the Parent Borrower or any Subsidiary of Indebtedness otherwise permitted hereunder of the Parent Borrower or any Subsidiary; provided that as at any date of determination, the aggregate outstanding amount (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) of (A) Investments made after the Closing Date by the Loan Parties pursuant to subclause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net outstanding intercompany loans made after the Closing Date by the Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (ii), plus (C) outstanding Guarantees by the Loan Parties of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (iii), shall not exceed the sum of (X) the Transactions greater of (including payment x) $200,000,000 and (y) 4.00% of Consolidated Total Assets plus (Y) with respect to any Investment made pursuant to clause (X), an amount equal to any returns of or on capital actually received in respect of any such Investment pursuant to clause (X) (not exceeding the amount of the purchase consideration original investment), it being understood and agreed that clause (Y) replenishes clause (X) and shall not create additional Investment capacity beyond the amount available under the Merger Agreementclause (X);
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Parent Borrower or any Subsidiary of non-cash consideration for the Disposition of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any the Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 million (i) in respect of business related travel and entertainment expenses, relocation costs and similar purposes in the ordinary course of business and (ii) for any other purpose, in an aggregate principal outstanding amount (valued at the time of the making thereof, and without giving effect to any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (ix) $25.0 million 25,000,000 and (iiy) 0.50% of Consolidated Total Assets as Assets;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of the date business and any such Investment is made, plus an amount equal to any returns of capital assets or sale proceeds actually securities received in respect satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers or customers made in the ordinary course of business;
(g) Hedging Agreements entered into for non-speculative purposes;
(h) Investments existing on, or contractually committed as of, the Closing Date and, to the extent in excess of $3,000,000 individually or in excess of $10,000,000 in the aggregate, set forth on Schedule 6.04 and any such extensions, renewals or replacements thereof or reinvestments therein, so long as (x) the aggregate amount of all Investments pursuant to this clause (which such amount shall h) is not exceed increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as determined above) at required by the time terms of any such Investment as in existence on the Closing Date or as otherwise permitted by this Section 6.04) and (y) to the extent the applicable Investment existing on, or contractually committed as of, the Closing Date was madeowned or committed by a Loan Party, any replacement of such Investment or commitment shall also be owned or committed by a Loan Party;
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (j), (g), (o), (r), (s), (z), (ee) and (ll);
Appears in 1 contract
Investments, Loans and Advances. PurchaseNo Credit Party shall, hold or acquire shall permit any of the Restricted Subsidiaries to, directly or indirectly, make any advance, loan, extension of credit (including pursuant to by way of guaranty or otherwise) or capital contribution to, or purchase any mergerstock, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such mergerbonds, consolidation or amalgamation) any Equity Interestsnotes, evidences of Indebtedness debentures or other debt securities of, make or permit to exist any loans or advances to or Guarantees of the obligations assets constituting a business unit of, or make or permit to exist any investment or any other interest in investment in, any Person (eachall of the foregoing, a “InvestmentInvestments”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) extensions of trade credit granted in the Transactions (including payment ordinary course of the purchase consideration under the Merger Agreement)business;
(2b) Investments in Cash Equivalents in connection with the cash management activities of Borrowers and their Subsidiaries;
(c) loans and advances to officers, directors, directors and employees or consultants of any Parent EntityGroup Member in the ordinary course of business (including for travel, the Borrower or any Restricted Subsidiary entertainment and relocation expenses) in an aggregate amount for all Group Members not to exceed $15.0 million in an aggregate principal amount 5,000,000 at any one time outstanding (calculated without regard to write-downs or write-offs thereof after the date made)outstanding;
(3) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5d) intercompany Investments among the Credit Parties;
(e) (i) intercompany Investments by Subsidiaries which are not Credit Parties in Credit Parties, (ii) intercompany Investments by Subsidiaries which are not Credit Parties in other Subsidiaries which are not Credit Parties (including, without limitation, Foreign Subsidiaries), (iii) intercompany Investments by Credit Parties in Subsidiaries which are not Credit Parties (including, without limitation, Permitted Acquisitions of Persons that do not become Subsidiary Guarantors following the Closing Date), in an aggregate amount not to exceed, at the time made, the greater of (when combined with Permitted Acquisitions made in reliance on the dollar basket contained in clause (b) of the definition thereof) (x) $50,000,000150,000,000 and (y) 3.5% of consolidated net total assets of the Parent Borrower and its Restricted Subsidiaries at such time and (iv) subject to Pro Forma Compliance with the Restricted Conditions, intercompany Investments by Credit Parties in Subsidiaries which are not Credit Parties (including intercompany Indebtednessincluding, without limitation, Unrestricted Subsidiaries); provided that ;
(f) subject to Pro Forma Compliance with the sum of (a) the aggregate fair market value of all such Restricted Conditions, Permitted Acquisitions and other Investments (other than intercompany Indebtedness and Guarantees Acquisitions);
(g) Investments in the ordinary course of Indebtednessbusiness consisting of endorsements of instruments for collection or deposit;
(h) made since Investments existing on, or contemplated as of, the Closing Date and listed on Schedule (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(317.2), may not exceed the greater of ;
(i) $25.0 million Investments received in connection with the bankruptcy or reorganization of suppliers or customers and (ii) 0.50% in settlement of Consolidated Total Assets as delinquent obligations of, and other disputes with, customers arising in the ordinary course of the date any such Investment is made, plus an amount equal business or upon foreclosure with respect to any returns secured Investment or other transfer of capital or sale proceeds actually title with respect to any secured Investment and Investments received in respect satisfaction or partial satisfaction of any trade receivable from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(j) Investments to the extent that payment for such Investments is made solely with Qualified Capital Stock or common Capital Stock of Parent Borrower;
(which such amount shall not exceed k) Investments constituting non-cash proceeds of sales, transfers and other dispositions of assets to the amount of such Investment (as determined above) at the time such Investment was made)extent permitted by Section 7.8;
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) (i) Investments by the following Company or any Subsidiary in the Equity Interests of the Company or any Subsidiary; (collectivelyii) intercompany loans from the Company or any Subsidiary to the Company or any Subsidiary; and (iii) Guarantees by the Borrower or the Subsidiary Guarantor of Indebtedness otherwise expressly permitted hereunder of the Company or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) $[*]and (2) [*]% of Consolidated Total Assets (plus any return of capital actually received by the Transactions respective investors in respect of Investments theretofore made by them pursuant to this paragraph (including payment a);)); plus (y) the portion, if any, of the purchase consideration under Cumulative Credit on the Merger Agreementdate of such election that the Company elects to apply to this Section 6.04(a)(y), such election to be specified in a written notice of a Responsible Officer of the Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided further, that the limitations in this paragraph shall not apply to any Investment entered into at a time when the Company is in Ratio Compliance; provided, still further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(2b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by the Company or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05;
(d) loans and advances to current and former officers, directors, employees or consultants of any Parent Entity, the Borrower Company or any Restricted Subsidiary (i) in the ordinary course of business not to exceed the greater of (x) $15.0 million [*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of a Parent Entity solely to the extent that the amount of such loans and advances shall be contributed to the Company in cash as common equity;
(e) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(f) Swap Agreements permitted pursuant to Section 6.10;
(g) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (g) is not increased at any time above the amount of such Investment existing on the Closing Date;
(h) Investments resulting from pledges and deposits under Section 6.02(f);
(3i) other Investments by the Company or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(41) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million [*] and (ii) 0.50[*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date any of such Investment is madefor which financial statements have been delivered pursuant to Section 5.04 plus (2) the portion, plus an amount equal if any, of the Cumulative Credit on the date of such election that the Company elects to any returns apply to this Section 6.04(i)(2), such election to be specified in a written notice of capital or sale proceeds actually received a Responsible Officer of the Company calculating in respect of any such Investments (which such amount shall not exceed reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided further, that the limitations in this paragraph shall not apply to any Investment entered into if, immediately after giving effect thereto, on a Pro Forma Basis, (as determined abovei) either (A) the Loan-to-Value Ratio is equal to or less than [*] to 1.0 or (B) the Fixed Charge Coverage Ratio is at least [*] to 1.0 and (ii) the time such Investment was madeCompany is in Pro Forma Compliance;
(j) Investments constituting Permitted Business Acquisitions;
(k) intercompany loans permitted by Section 6.01(e);
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Company as a result of a foreclosure by the Company or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) intercompany loans and advances from the following Borrower to Claire’s Stores;
(collectivelyi) Investments by the Borrower or any Subsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower of Indebtedness otherwise expressly permitted hereunder of the Borrower or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write downs or write offs thereof) made after the Closing Date by the Borrower pursuant to clause (i) in Subsidiaries plus (B) net intercompany loans made after the Closing Date to Subsidiaries pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) the Transactions $150 million and (including payment 2) 5.0% of Consolidated Total Assets as of the purchase consideration under end of the Merger Agreementfiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b)), plus (y) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(b)(y); provided, further, that (x) intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Subsidiaries and (y) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business consistent with past practice shall not be included in calculating the limitation in this paragraph at any time;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of the Borrower or any Subsidiary (i) in the ordinary course of business not to exceed the greater of $5 million and 0.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such loan or advance for which financial statements have been delivered pursuant to Section 5.04 in the aggregate at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Claire’s Stores (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements permitted pursuant to Section 6.01;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), (u) and (ee);
(j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed (i) the greater of $150 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (j)) plus, (ii) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this Section 6.04(j)(ii); provided that if any Investment pursuant to this clause (j) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date pursuant to another Investment the amount of which, when taken together with the amount of the prior Investment, would be permitted under another provision of this Section 6.04, any Investment in such person outstanding under this Section 6.04(j) shall thereafter be deemed to have been made pursuant to such other provision and shall cease to have been made pursuant to this clause (j) for so long as such person continues to be a Subsidiary of the Borrower;
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Subsidiaries and Guarantees by Subsidiaries permitted by Section 6.01(o);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower or any of the Subsidiaries as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of an entity merged into, or consolidated or amalgamated with, the Borrower or merged into or consolidated or amalgamated with a Subsidiary after the Closing Date, in each case, (i) to the extent permitted under this Section 6.04 and, (ii) in the case of any acquisition, merger, consolidation or amalgamation, in accordance with Section 6.05 and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of Claire’s Stores, any Parent Entity, the Borrower or the Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Claire’s Stores or any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of Claire’s Stores (or any Parent Entity);
(r) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(s) Investments in connection with the consummation of the Exchange Transactions;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) Investments by the Borrower and the Subsidiaries, including loans and advances to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Subsidiary Payment in such amount (provided that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 of this Agreement);
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to this Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(x) Investments received substantially contemporaneously in exchange for Equity Interests of Claire’s Stores; provided, that such Investments are not included in any determination of Cumulative Credit;
(y) Investments arising as a result of Permitted Receivables Financings;
(z) Investments consisting of the licensing or contribution of intellectual property pursuant to exceed joint marketing arrangements with other persons;
(aa) purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business, to the extent such purchases and acquisitions constitute Investments;
(bb) Investments in joint ventures not in excess of the greater of $15.0 65 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtednessthereof); provided that the sum if any Investment pursuant to this clause (bb) is made in any person that is not a Subsidiary of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) Borrower after such date pursuant to another Investment the aggregate principal amount of Indebtedness owing which, when taken together with the amount of the prior Investment, would be permitted under another provision of this Section 6.04, any Investment in such person outstanding under this Section 6.04(bb) shall thereafter be deemed to have been made pursuant to such other provision and shall cease to have been made pursuant to this clause (bb) for so long as such person continues to be a Subsidiary of the Borrower and the Guarantors by Restricted Subsidiaries Borrower. The amount of Investments that are not Guarantors may be made at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31)6.04(b) or 6.04(j) (such Sections, may not exceed the greater of (i“Related Sections”) $25.0 million and (ii) 0.50% of Consolidated Total Assets as may, at the election of the date any Borrower, be increased by the amount of Investments that could be made at such Investment is made, plus an time under the other Related Section; provided that the amount equal to any returns of capital or sale proceeds actually received each such increase in respect of any such Investments (which such amount one Related Section shall not exceed be treated as having been used under the amount of such Investment (as determined above) at the time such Investment was made);other Related Section.
Appears in 1 contract
Investments, Loans and Advances. PurchaseThe Borrower will not, and will not cause or permit any of the Subsidiaries to, purchase, hold or acquire (including pursuant to any mergerassets, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity InterestsCapital Stock, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans loans, extensions of credit or advances to or Guarantees of the obligations to, make guarantees in favor of, or make or permit to exist any investment other investment, capital contribution or any other interest in (each, a “Investment”)in, any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1i) equity investments existing on the Transactions Effective Date by the Borrower in the Subsidiaries and listed on Schedule 6.04, (including payment ii) contributions of equity made after the Effective Date to Subsidiaries of the purchase consideration under Borrower that do not exceed $15,000,000 in the Merger Agreementaggregate during any Fiscal Year, as long as such contributions are not made for the purpose of funding an acquisition not otherwise permitted hereunder, and (iii) treasury stock held by the Borrower and its Subsidiaries on the Effective Date and listed on Schedule 6.04 or acquired by the Borrower or a Subsidiary as permitted pursuant to Section 6.06(a);
(2b) loans and advances to officers, directors, employees or consultants of any Parent Entity, made after the Effective Date by the Borrower or any Restricted Wholly Owned Subsidiary not that is a Domestic Subsidiary to exceed $15.0 million any Subsidiary or the Borrower; provided, that, any such loan or advance (i) is evidenced by an Intercompany Note pledged and delivered to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement (other than as excepted in an aggregate principal amount at any time outstanding clause (calculated without regard iii) of Section 6.01(c)), and (ii) is otherwise permitted pursuant to write-downs or write-offs thereof after the date madeSection 6.01 (c);
(3c) Investments trade accounts receivable (and related notes and instruments) arising in an amount not to exceed the Available Amount as ordinary course of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrombusiness consistent with past practices;
(4d) Permitted Acquisitions (i) advances to employees for home-swing loans and pre-existing Investments held moving and travel expenses in the ordinary course of business consistent with past practices, and guarantees by Persons acquired in Permitted Acquisitions or acquired the Borrower in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum home-swing loans of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing third parties to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million employees and (ii) 0.50loans to executive officers of the Borrower to assist in the payment of taxes resulting from an election made under Section 83(b) of the Code;
(e) Cash Equivalents;
(f) securities held by the Borrower or any of the Subsidiaries prior to the Effective Date and listed in Schedule 6.04;
(g) in connection with one or more non-hostile acquisitions by the Borrower or any Qualified Acquisition Subsidiary, any assets or Capital Stock (other than Margin Stock) of any other person (such assets, in the case of an asset acquisition, or person, in the case of the acquisition of Capital Stock, is referred to herein as the “Acquired Entity”) so long as (A) in the case of an acquisition of assets, such assets are to be used, and in the case of an acquisition of Capital Stock, the person so acquired is engaged, in a business substantially similar or related to the businesses of the Borrower on the date hereof, (B) the Borrower shall have provided the Lenders with the financial projections required by Section 5.04(g) and such other information as the Lenders shall reasonably request, (C) on the date of such acquisition and immediately after giving effect thereto, the representations and warranties set forth in Article III shall be true and correct in all material respects with the same effect as though made on and as of such date and no Default or Event of Default shall exist, (D) after giving effect to such Permitted Acquisition (as defined below), the Borrower shall have delivered to the Administrative Agent calculations satisfactory to the Administrative Agent demonstrating that on a pro forma basis the Borrower is in compliance with Sections 6.13(a) and (b), (E) in the case of an acquisition of Capital Stock of a person, then simultaneously with any such acquisition, the Collateral Agent for the benefit of the Secured Parties shall be granted (i) in the case of a person organized under the laws of the United States, any State thereof or the District of Columbia, a first priority security interest in all real and personal property of such person and in all of such Capital Stock acquired by the Borrower or any Qualified Acquisition Subsidiary as part of such acquisition, and (ii) in the case of a person organized under the laws of a jurisdiction other than the United States, any State thereof or the District of Columbia, that will be acquired directly by the Borrower or a Domestic Subsidiary, a first priority security interest in 65% of Consolidated Total Assets as all of the date Capital Stock of the person so acquired, and in all cases the Borrower shall, and shall cause any applicable Subsidiary to, execute any documents (including a Supplemental Agreement, Intercompany Note, financing statements and other Collateral Documents) and take all action (including filing financing statements and obtaining and providing consents, and legal opinions) that may be required under applicable law, or that the Administrative Agent or the Collateral Agent may request, in order to grant, preserve, protect and perfect such Investment is madesecurity interest, plus (F) in the case of an amount equal to any returns acquisition of capital Capital Stock of a person, the Borrower acquires directly or sale proceeds actually received in respect indirectly 100% of any such Investments (which such amount shall not exceed the amount Capital Stock of such Investment (as determined above) at the time such Investment was made);person; and
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) the following Transactions;
(collectivelyb) (i) Investments by the Borrowers or any Subsidiary in the Equity Interests of the Borrowers or any Subsidiary; (ii) intercompany loans from the Borrowers or any Subsidiary to the Borrowers or any Subsidiary; and (iii) Guarantees by the Borrowers or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Borrowers or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) $75.0 million and (2) 4.5% of Consolidated Total Assets (plus any return of capital actually received by the Transactions respective investors in respect of Investments theretofore made by them pursuant to this paragraph (including payment b)); plus (y) the portion, if any, of the purchase consideration under Cumulative Credit on the Merger Agreementdate of such election that the Borrowers elect to apply to this Section 6.04(b)(y), such election to be specified in a written notice of a Responsible Officer of the Borrowers calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrowers and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrowers or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower Borrowers or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any direct or indirect parent of Holdings) solely to the extent that the amount of such loans and advances shall be contributed to the Borrowers in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements permitted pursuant to Section 6.12;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing on the Closing Date;
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (r), (s), (u) and (ee);
(j) other Investments by the Borrowers or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4i) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 100.0 million and (ii) 0.505% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date any of such Investment is madefor which financial statements have been delivered pursuant to Section 5.04 plus (ii) the portion, plus an amount equal if any, of the Cumulative Credit on the date of such election that the Borrowers elect to any returns apply to this Section 6.04(j)(ii), such election to be specified in a written notice of capital or sale proceeds actually received a Responsible Officer of the Borrowers calculating in respect of any such Investments (which such amount shall not exceed reasonable detail the amount of Cumulative Credit immediately prior to such Investment election and the amount thereof elected to be so applied;
(as determined abovek) at the time such Investment was madeInvestments constituting Permitted Business Acquisitions;
(l) intercompany loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrowers as a result of a foreclosure by the Borrowers or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
Appears in 1 contract
Samples: Credit Agreement (Rexnord Corp)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1i) Investments by any Borrower or any Subsidiary in the Transactions Equity Interests of any Borrower or any Subsidiary; (including payment ii) intercompany loans from any Borrower or any Subsidiary to any Borrower or any Subsidiary; and (iii) Guarantees by any Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of any Borrower or any Subsidiary, provided that the sum of (A) Investments (valued at the time of the purchase consideration under making thereof and without giving effect to any write downs or write offs thereof) made after the Merger AgreementClosing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Closing Date by Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees after the Closing Date by Loan Parties of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to $5,000,000 (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b));
(2b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by any Borrower or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 7.05;
(d) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 million in an aggregate principal amount 1,000,000 at any time outstanding (calculated without regard to write-write downs or write-write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of the Holdcos (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to such Borrower in cash as common equity;
(e) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(f) Swap Contracts permitted hereunder;
(g) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 7.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (g) is not increased at any time above the amount of such Investment existing or contractually committed to on the Closing Date;
(h) Investments resulting from pledges and deposits under Sections 7.02(f), (g), (k), (r), (s) and (u);
(3i) other Investments in an amount not to exceed by any Borrower or any Subsidiary if (i) the Available Amount as of the date such Investments are made; provided that Payment Conditions shall have been met and (ii) no Event of Default has shall have occurred and is be continuing immediately prior to making such Investment or would result therefrom;
(4j) Investments constituting Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Business Acquisitions;
(5k) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted loans between Subsidiaries that are not GuarantorsSubsidiary Loan Parties and Guarantees by such Subsidiaries to the extent permitted by Section 7.01(l);
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by any Borrower as a result of a foreclosure by such Borrower or any of its Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(m) Investments of a Subsidiary acquired after the Closing Date or of an entity merged into any Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, to the extent permitted under this Section 7.04 and, in the case of any acquisition, merger, consolidation or amalgamation, in accordance with Section 7.05 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;
(n) acquisitions by any Borrower of obligations of one or more current or former officers, directors or other employees of the Holdcos, any Parent Entity, such Borrower or its Subsidiaries and their respective estates, spouses or former spouses in connection with such person’s acquisition of Equity Interests of the Holdcos or any Parent Entity, so long as no cash is actually advanced by such Borrower or any of its Subsidiaries to such persons in connection with the acquisition of any such obligations;
(o) Guarantees by any Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by any Borrower or any Subsidiary in the ordinary course of business;
(p) Investments to the extent that payment for such Investments is made with Equity Interests of the Holdcos (or any Parent Entity);
(q) Investments in the Equity Interests of one or more newly formed persons that are received in consideration of the contribution by the Holdcos, the applicable Borrower or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided that (bi) the fair market value (as determined in good faith by such Borrower) of such assets, determined on an arms’-length basis, so contributed pursuant to this paragraph (q) shall not in the aggregate principal amount exceed $1,000,000 and (ii) in respect of Indebtedness owing to each such contribution, a Responsible Officer of the applicable Borrower shall certify (x) no Default or Event of Default shall have occurred and be continuing or would result from such contribution, (y) the Guarantors fair market value (as determined in good faith by such Borrower) of the assets so contributed and (z) that the requirements of clause (i) of this proviso remain satisfied;
(r) Investments consisting of Restricted Payments permitted under Section 7.06;
(s) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(t) Investments in Subsidiaries that are not Guarantors Loan Parties not to exceed $1,000,000 at any time outstanding; and outstanding (c) the aggregate principal amount plus any return of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed capital actually received by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received respective investors in respect of any such Investments theretofore made by them pursuant to this paragraph (which such amount shall not exceed u)), as valued at the amount fair market value (as determined in good faith by the applicable Borrower) of such Investment (as determined above) at the time such Investment was is made;
(u) Investments consisting of the licensing or contribution of intellectual property licenses pursuant to joint marketing arrangements with other persons;
(v) Guarantees permitted under Section 7.01 (except to the extent such Guarantee is expressly subject to Section 7.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the applicable Borrower or Subsidiary;
(x) Investments by any Borrower and its Subsidiaries, including loans and advances, to any direct or indirect parent of such Borrower, if such Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount (provided that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 7.06 for all purposes of this Agreement);
(y) Investments received substantially contemporaneously in exchange for Equity Interests of the Holdcos or any Parent Entity;
(z) Investments in joint ventures not in excess of $5,000,000 in the aggregate (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this clause (z)); provided that if any Investment pursuant to this clause (z) is made in any person that is not a Subsidiary of any Borrower at the date of the making of such Investment and such person becomes a Subsidiary of any Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to Section 7.04(a) and shall cease to have been made pursuant to this clause (z) for so long as such person continues to be a Subsidiary of a Borrower;
(aa) Reasonable and customary Investments (including, to the extent reasonable and customary, capital contributions, intercompany debt or other extensions of credit) in any Receivables Subsidiary in connection with any Qualified Receivables Financing; and
(bb) Industrial revenue bonds or other similar municipal bonds issued to any Borrower or any Subsidiary pursuant to arrangements of the type pursuant to which the industrial revenue bond set forth on Schedule 7.04 was issued, provided that any consideration paid by any Borrower or any Subsidiary for such bonds is applied solely for the acquisition, lease, construction, repair, replacement or improvement of property owned or leased (or to be owned or leased) by any Borrower or any Subsidiary and to pay costs and expenses in connection with such arrangements.
Appears in 1 contract
Samples: Credit Agreement (Constellium N.V.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations ofto, or make or permit to exist any investment or any other interest in (each, a “Investment”)in, any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) (i) investments by Holdings and the Subsidiaries existing on the 2016 Restatement Date in the Equity Interests of Holdings and the Subsidiaries and (ii) additional investments by Holdings and the Subsidiaries in the Equity Interests of Holdings, the Subsidiaries, the Unrestricted Subsidiaries and the Escrow Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to a Collateral Agreement or another Security Document (subject to Agreed Security Principles), (B) the Transactions (including payment aggregate amount of the purchase consideration under the Merger Agreement);
(2) investments by Loan Parties in, and loans and advances by Loan Parties to, Escrow Subsidiaries shall not exceed the amount reasonably determined by Holdings to officersbe the amount such Escrow Subsidiary would be required to pay in respect of accrued interest, directorsaccreted original issue discount, employees or consultants premium, fees and expenses in the event that the related Permitted Acquisition is not consummated at the applicable Escrow Release Effective Time and (C) the aggregate outstanding amount of any Parent Entityinvestments by Loan Parties in, the Borrower and loans and advances by Loan Parties to, Escrow Subsidiaries and Subsidiaries of Holdings that are not Loan Parties, and investments by Holdings or any Restricted Subsidiary not to exceed $15.0 million in an aggregate principal amount at in, and loans and advances by Holdings or any time outstanding Subsidiary to, any Unrestricted Subsidiary made after the 2016 Restatement Date (calculated determined without regard to any write-downs or write-offs thereof after the date made);
(3of such investments, loans and advances) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may shall not exceed (at the time such investment, loan or advance is made) the greater of (ix) $25.0 million 600,000,000 and (iiy) 0.5015% of Consolidated Total Assets EBITDA as of the date any such Investment is made, plus an amount equal to any returns most recently completed period of capital or sale proceeds actually received in respect of any such Investments (four consecutive fiscal quarters for which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);financial statements and certificates required by Sections [[5517420]] #93623000v7
Appears in 1 contract
Samples: Fourth Amended and Restated Credit Agreement (Pactiv Evergreen Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations ofto, or make or permit to exist any investment or any other interest in (each, a “Investment”)in, any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) investments by the Transactions (including payment Borrowers existing on the date hereof in the Equity Interests of the purchase consideration under Subsidiaries and the Merger Agreement)investment by Activision Holdings in Kaboom existing on the date hereof in an amount not in excess of $1,000;
(2b) Permitted Investments held in the Investment Account and, if Undrawn Availability is at least $10,000,000 and there are no outstanding Revolving Loans (or such lesser amount to which the Administrative Agent consents), other Permitted Investments;
(c) Receivables owing to any Borrower or any of its Subsidiaries arising from sales of Inventory under usual and customary terms in the ordinary course of business;
(d) advances not to exceed $500,000 outstanding at any time to employees of the Borrowers and the Subsidiaries to meet expenses incurred by such employees in the ordinary course of business;
(e) any wholly owned Subsidiary may make intercompany loans to a Borrower or any other wholly owned Subsidiary and any Borrower may make intercompany loans and advances to officers, directors, employees any wholly owned Subsidiary; provided that any promissory notes evidencing such intercompany loans shall be pledged (and delivered) by the applicable Borrower or consultants the respective wholly owned Domestic Subsidiary that is the lender of such intercompany loan as Collateral pursuant to the Pledge Agreement; provided further that (i) any Parent Entity, the Borrower or any Restricted Subsidiary not Domestic Subsidiaries may make loans to exceed $15.0 million in an aggregate and repay loans from any Foreign Subsidiaries pursuant to this paragraph (e) only if, after giving effect thereto, the outstanding principal amount of all loans made by Foreign Subsidiaries to Activision during any Fiscal Year shall exceed the principal of loans made by any Borrower and its Domestic Subsidiaries during such period and as of the end of each Fiscal Year the outstanding principal amount of loans made by Foreign Subsidiaries shall exceed the outstanding principal amount of loans made by the Borrowers and their Domestic Subsidiaries by at least $4,000,000 and (ii) any time outstanding loans made by any Foreign Subsidiaries to any Borrower or any of its Domestic Subsidiaries pursuant to this paragraph (calculated without regard e) shall be unsecured and subordinated to write-downs the obligations of the Loan Parties pursuant to subordination provisions in substantially the form of Exhibit J to the Existing Credit Agreement; and any loans made by any Loan Party to any Foreign Subsidiary shall be evidenced by one or write-offs thereof after more revolving Master Notes pledged to the date made)Collateral Agent pursuant to the Pledge Agreement.
(f) the Borrowers may establish Subsidiaries to the extent permitted by Section 6.15;
(3g) Investments in an amount not to exceed the Available Amount as Borrowers and the Domestic wholly owned Subsidiaries may make additional loans and advances to, or other investments in, Foreign Subsidiaries of the date such Investments are made; provided that no Event Borrowers with the prior written consent of Default has occurred and is continuing immediately prior to making such Investment or would result therefromthe Required Lenders;
(4h) a Borrower or any wholly owned Subsidiary may acquire substantially all the assets of, or more than 50% of the Equity Interests of, a person (such assets or such person referred to herein as the "Acquired Entity" and any acquisition completed under this subsection 6.04(h) is a "Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany IndebtednessAcquisition"); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as each of the date any such Investment following conditions is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);satisfied:
Appears in 1 contract
Investments, Loans and Advances. Purchase(a) Except as otherwise expressly permitted by this Section 6.2, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or no Credit Party shall make or permit to exist any investment in, or any other interest in (eachmake, a “Investment”)accrue or permit to exist loans or advances of money to, any other Person, through the direct or indirect lending of money, holding of securities or otherwise, except the following (collectively, “Permitted Investments”):that:
(1i) any Credit Party may make loans or advances to employees for reimbursable expenses in the Transactions (including payment ordinary course of the purchase consideration under the Merger Agreementbusiness and as permitted in Section 6.4(b);
(2ii) the Borrower may make and maintain equity investments in its Restricted Subsidiaries and may make and maintain loans or advances to its Restricted Subsidiaries and the Restricted Subsidiaries may make and maintain loans and advances to officersthe Borrower, directors, employees provided that such loans or consultants of any Parent Entity, advances are evidenced by notes and all such equity investments and loans or advances are pledged to the Borrower or any Restricted Subsidiary not to exceed $15.0 million in an aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after Agent as security for the date made)Obligations;
(3iii) Investments in an amount not any Credit Party may make and maintain equity investments in, and make loans and advances to, Permitted Joint Ventures and Permitted Joint Venture Holding Companies and subject to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;following limitations:
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (aA) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases amount that may be invested in value) Permitted Joint Ventures by the Borrower and its Subsidiaries, taken as a whole, shall not exceed $20,000,000 in any Fiscal Year, and, of that amount, the Guarantors aggregate amount that may be invested in Levered Permitted Joint Ventures shall not exceed $10,000,000 in any Fiscal Year, provided, that for the purposes of this Section 6.2(a)(iii)(A), there shall be excluded from the amount invested in Permitted Joint Ventures the amount invested in any (x) Existing Permitted Joint Venture on the Closing Date and (y) Acquired Permitted Joint Venture in connection with the initial acquisition thereof except to the extent that the EBITDA of such Acquired Permitted Joint Venture exceeds 25% of the total EBITDA of the Acquisition Target the purchase of which resulted in the acquisition of such Acquired Permitted Joint Venture (the "Excess EBITDA;" in such case the amount deemed invested in such Acquired Permitted Joint Venture for the purpose of this Section 6.2(a)(iii)(A) shall equal the aggregate consideration paid for such Acquisition Target, multiplied by a fraction, the numerator of which is the amount of such Excess EBITDA, and the denominator of which is the total EBITDA of such Acquisition Target),
(B) if such investment constitutes an equity investment, such investment shall be pledged to the Agent as security for the Obligations to the extent provided in Section 6.1(b)(iv),
(C) all investments constituting loans or advances shall be evidenced by a note and pledged to the Agent as additional security for the Obligations,
(D) if the aggregate amount invested in any one Permitted Joint Venture in any period of three months shall equal or exceed $3,500,000, the Borrower shall deliver at the time that such investment first equals or exceeds such amount, a compliance certificate in the form required by clause (iv) of the second sentence of Section 6.1(a), and (E) for the purpose of this Section 6.2.(a)(iii), investments, loans and advances to Permitted Joint Venture Holding Companies shall be permitted to the extent the proceeds thereto are immediately reinvested by the Permitted Joint Venture Holding Company into the Permitted Joint Venture in which such Permitted Joint Venture Holding Company owns Stock;
(iv) Borrower and its Restricted Subsidiaries may make Managed Practice Advances to Managed Practices, provided that are not Guarantors; (b) the aggregate principal unpaid amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are such advances does not Guarantors exceed $5,000,000 at any time outstanding; and
(v) so long as no Event of Default shall have occurred and be continuing, Borrower may make investments in the aggregate, in:
(cA) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency thereof maturing within one year from the date of acquisition thereof,
(B) commercial paper maturing no more than one year from the date of creation thereof and currently having the highest rating obtainable from either Standard & Poor's Corporation or Moodx'x Investors Service, Inc.,
(C) certificates of deposit, maturing no more than one year from the date of creation thereof, issued by commercial banks incorporated under the laws of the United States of America, each having combined capital, surplus and undivided profits of not less than $300,000,000 and having a senior secured rating of "A" or better by a nationally recognized rating agency (an "A Rated Bank"),
(D) time deposits, maturing no more than 180 days from the date of creation thereof with A Rated Banks,
(E) marketable direct obligations issued by a state of the United States or a political subdivision thereof that is rated A (or the then equivalent grade) or better by Moodx'x Xxxestor Service, Inc. or Standard & Poor's Corporation and maturing within one (1) year from the date of acquisition thereof,
(F) funds or similar vehicles which invest exclusively in obligations of the type described in clauses (A) through (E) above,
(G) secured repurchase agreements relating to investments of the types described in clauses (A) or (E) above, provided that for any such repurchase agreement the counterparty thereto is a government securities dealer designated by the Federal Reserve Bank of New York as a "reporting dealer" and whose financial statements indicate capital of at least $50,000,000, and
(H) other investments not exceeding $2,000,000 in the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding.
(b) No Permitted Joint Venture Holding Company and no Permitted Joint Venture shall make or permit to exist any investment in, together or make, accrue or permit to exist loans or advances of money to, any Person, through the direct or indirect lending of money, holding of securities or otherwise, except that (i) a Permitted Joint Venture Holding Company may make investments, loans or advances and may hold the securities of the Permitted Joint Venture in which it holds Stock, provided that such investment meets the other requirements of this Section 6.2, (ii) a Permitted Joint Venture may make investments permitted pursuant to clauses (A) through (G) of subsection (v) of Section 6.2(a) for cash management purposes and may make other investments, loans or advances for strategic purposes in an entity that does not constitute a Subsidiary or a Permitted Joint Venture, provided that such investment, loan or advance (when aggregated with any Investments all other investments, loans or advances by the Borrower, its Subsidiaries and all other Permitted Joint Ventures made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(316.2(a)(v)(H), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount limit set forth in Section 6.2(a)(v)(H), and (iii) a Permitted Joint Venture may make other investments with the prior written consent of the Agent and the Requisite Lenders upon such terms and conditions as the Agent and the Requisite Lenders shall require in their good faith discretion (the Agent and the Lenders agree to respond promptly to any request by the Borrower for such consent).
(c) No additional loans, advances or investments shall be made by the Borrower or its Subsidiaries to or in any Permitted Joint Venture from and after the time that such Permitted Joint Venture qualifies as such solely by virtue of clause (vi) of the definition thereof; provided that this prohibition shall be lifted if and so long as such Permitted Joint Venture again satisfies all of the requirements of clauses (i) through (v) of such Investment (as determined above) at the time such Investment was made);definition.
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Owned Subsidiary Loan Party immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) (i) Investments by any Loan Party or any Subsidiary in the Transactions (including payment Equity Interests of the purchase consideration under Borrower or any Subsidiaryany Covenant Party; (ii) intercompany loans from the Merger AgreementBorrower or any Subsidiary to the Borrower or any Subsidiaryany Covenant Party to any other Covenant Party; and (iii) Guarantees by any Loan Party of Indebtedness otherwise expressly permitted hereunder of the Borrower or any Subsidiaryany Covenant Party; provided that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write downs or write offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) intercompany loans made after the Closing Date by the Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date by the Loan Parties of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate outstanding amount at any time of $7.5 million and shall only be permitted so long as no Default or Event of Default is continuing or would result therefrom;
(2b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by the Borrower or any Subsidiaryany Covenant Party of non-cash consideration for the sale of assets to the extent permitted under Section 6.05;
(d) so long as no Default or Event of Default is continuing or would result therefrom, loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary SubsidiaryCovenant Party (i) in the ordinary course of business not to exceed $15.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write downs or write offs thereof) and (ii) in respect of payroll or relocation expenses in the ordinary course of business, consistent with past practices, not to exceed $5.0 million in the aggregate at any time outstanding (calculated without regard to write downs or write offs thereof);
(e) accounts receivable, security deposits and prepayments arising with customers and trade credit, in each case, arising or granted in the ordinary course of business, and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any security deposits, prepayments and other credits to suppliers, lessors or utilities made in the ordinary course of business;
(f) Hedging Agreements permitted pursuant to Section 6.11;
(g) Investments existing on the Closing Date and set forth on Schedule 6.04 and any extensions or renewals thereof to the extent not involving any additional Investments other than as the result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities, in each case pursuant to the terms of such Investments as in effect on the date of this Agreement;
(h) Investments resulting from pledges and deposits under Section 6.02;
(i) so long as no Default or Event of Default is continuing or would result therefrom, other Investments by the Borrower or any Subsidiaryany Covenant Party in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed $15.0 million (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this clause (i));
(j) Investments constituting Permitted Business Acquisitions;
(k) intercompany loans between Subsidiaries that are not Loan Parties and Guarantees by Subsidiaries that are not Loan Parties permitted by Section 6.01(l);
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower or a Subsidiaryany Covenant Party as a result of a foreclosure by the Borrower or any of the Subsidiariesany Covenant Party with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(m) Investments of a Subsidiary acquired after the Closing Date or of an entity merged into, or consolidated or amalgamated with the Borrowera First Tier Covenant Party or merged into or consolidated or amalgamated with a Subsidiary after the Closing Date, in each case, (i) to the extent permitted under this Section 6.04, (ii) in the case of any acquisition, merger or consolidation or amalgamation, in accordance with Section 6.05, and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation or amalgamation and were in existence on the date of such acquisition, merger or consolidation or amalgamation;
(n) Guarantees by the Borrower or any Subsidiaryany Covenant Party of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrowera First Tier Covenant Party or any Subsidiary Loan Party in the ordinary course of business;
(o) so long as no Event of Default is continuing or would result therefrom, Investments to the extent that payment for such Investments is made with Equity Interests (other than Disqualified Stock) of Holdings or any Parent Entity;
(p) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(q) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(r) so long as no Default or Event of Default is continuing or would result therefrom, Investments in Unrestricted Subsidiaries or Subsidiaries that are not Loan Parties after giving effect to the applicable Investments in an aggregate amount (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof after thereof) outstanding at any time not to exceed $5.0 million;
(s) Guarantees permitted under Section 6.01 (except to the date madeextent such Guarantee is expressly subject to Section 6.04);
(3t) advances in the form of a prepayment of expenses in the ordinary course of business, so long as such expenses are being paid in accordance with customary trade terms of the Borrowera First Tier Covenant Party or such Subsidiary, but excluding payments of such expenses that are otherwise prohibited by this Agreement;
(u) Investments in an amount not to exceed the Available Amount as consisting of the date such licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons in the ordinary course of business;
(v) Investments are made; provided that consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business;
(w) so long as no Default or Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom, Investments in joint ventures not in excess of $5.0 million in the aggregate;
(4x) Investments in the Borrower and SubsidiariesCovenant Parties to the extent necessary to consummate the Permitted Acquisitions Restructuring Transactions; provided that to the extent any Investments are made in Subsidiaries that are not Loan Parties, such Investments shall be in amounts and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;on such other terms as are reasonably satisfactory to the Administrative Agent; and
(5y) intercompany Investments among in addition to the foregoing Investments, the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness)SubsidiariesCovenant Parties may make additional Investments; provided that that, at the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);Payment Conditions are satisfied.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Verso Corp)
Investments, Loans and Advances. PurchaseAt any time that the Facilities do not have an Investment Grade Standing, purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations ofto, or make or permit to exist any investment or any other interest in (each, a “Investment”)in, any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1i) investments by Overnite and the Subsidiaries existing on the date hereof in the Equity Interests of the Borrower and the Subsidiaries and (ii) additional investments by Overnite and the Subsidiaries in the Equity Interests of the Borrower and the Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to the limitations applicable to voting stock of a Foreign Subsidiary referred to in Section 4.02(f)) and (B) the Transactions (including payment aggregate amount of the purchase consideration under the Merger Agreement)investments by Loan Parties in, and loans and advances by Loan Parties to, Subsidiaries that are not Loan Parties shall not exceed $15,000,000 at any time outstanding;
(2b) Permitted Investments;
(c) loans or advances made by Overnite to any Subsidiary and made by any Subsidiary to Overnite or any other Subsidiary; provided that the amount of such loans and advances made by Loan Parties to officersSubsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (a) above;
(d) investments received in connection with the bankruptcy or reorganization of, directorsor settlement of delinquent accounts and disputes with, employees or consultants customers and suppliers, in each case in the ordinary course of any Parent Entitybusiness;
(e) Overnite and the Subsidiaries may make loans and advances in the ordinary course of business and consistent with past practice to their respective employees, so long as the Borrower or any Restricted Subsidiary not to exceed $15.0 million in an aggregate principal amount thereof at any time outstanding (calculated determined without regard to any write-downs or write-offs thereof after the date made)of such loans and advances) shall not exceed $5,000,000;
(3f) Investments Overnite and the Subsidiaries may enter into Hedging Agreements in an amount the ordinary course of business that are not to exceed the Available Amount as speculative in nature;
(g) Overnite or any Subsidiary may acquire all or substantially all of the date assets of a person or line of business of such Investments are madeperson, or not less than 100% of the Equity Interests of a person (referred to herein as the “Acquired Entity”); provided provided, that (i) such acquisition was not preceded by an unsolicited tender offer for such Equity Interests, or proxy contest initiated, by Overnite or any Subsidiary; (ii) the Acquired Entity shall be in a similar line of business as that of Overnite and its Subsidiaries as conducted during the current and most recent calendar year; and (iii) at the time of such transaction (A) both before and after giving effect thereto, no Event of Default has or Default shall have occurred and is continuing immediately prior be continuing; (B) Overnite and its Subsidiaries would be in Pro Forma Compliance, as evidenced by a certificate of a Financial Officer of Overnite which shall have been prepared in good faith and based on reasonably detailed written assumptions; (C) after giving effect to making such Investment or would result therefrom;
acquisition, there must be at least $50,000,000 of unused and available Revolving Credit Commitments; and (4D) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired the aggregate of the consideration paid in connection with such acquisition and any related acquisitions pursuant to this Section 6.04(h) (including any deferred purchase price and any Indebtedness of the Acquired Entity that is assumed by Overnite or any Subsidiary following such acquisition) shall not in the aggregate exceed $100,000,000 in any fiscal year or $250,000,000 in the aggregate (any acquisition of an Acquired Entity meeting all the criteria of this Section 6.04(h) being referred to herein as a “Permitted Acquisitions;Acquisition”); and
(5h) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of in addition to investments permitted by paragraphs (a) through (g) above, additional investments, loans and advances by Overnite and the aggregate fair market value of all such Investments Subsidiaries (other than intercompany Indebtedness investments, loans and Guarantees of Indebtednessadvances to Foreign Subsidiaries) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) so long as the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstandinginvested, together with any Investments made in Restricted Subsidiaries that are not Guarantors loaned or advanced pursuant to Section 6.04(31)this paragraph (h) (determined without regard to any write-downs or write-offs of such investments, may loans and advances) does not exceed $10,000,000 in the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);aggregate.
Appears in 1 contract
Samples: Credit Agreement (Overnite Corp)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions (including payment of the purchase consideration under the Merger Agreement)Transactions;
(2i) Investments by the Borrower or any Subsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Borrower or any Subsidiary; provided that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write downs or write offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to $20.0 million (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b)); provided, further, that (x) intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Subsidiaries, and (y) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business consistent with past practice shall not be included in calculating the limitation in this paragraph at any time;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 5.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write-write downs or write-write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any direct or indirect parent of Holdings) solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements permitted pursuant to Section 6.11;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(3i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (s), (v) and (gg);
(j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed $25.0 million (plus any returns of capital actually received by the Available Amount as respective investor in respect of the date such Investments are madeinvestments theretofore made by it pursuant to this paragraph (j)); provided that no Event if any Investment pursuant to this clause (j) is made in any person that is not a Subsidiary of Default has occurred and is continuing immediately prior to the Borrower at the date of the making of such Investment or would result therefromand such person becomes a Subsidiary of the Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (b) above and shall cease to have been made pursuant to this clause (j) for so long as such person continues to be a Subsidiary of the Borrower;
(4k) Investments constituting Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Business Acquisitions;
(5l) intercompany loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(m);
(m) Investments among received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of an entity merged into, or consolidated or amalgamated with the Borrower or merged into or consolidated or amalgamated with a Subsidiary after the Closing Date, in each case, (i) to the extent permitted under this Section 6.04 and, (ii) in the case of any acquisition, merger or consolidation or amalgamation, in accordance with Section 6.05, and (iii) to the Restricted extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation or amalgamation and were in existence on the date of such acquisition, merger or consolidation or amalgamation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of Holdings, any Parent Entity, the Borrower or the Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of Holdings (or any direct or indirect parent of Holdings);
(r) Investments in the equity interests of one or more newly formed persons that are received in consideration of the contribution by Holdings, the Borrower or the applicable Subsidiary of assets (including intercompany Indebtedness)Equity Interests and cash) to such person or persons; provided that the sum of (ai) the aggregate fair market value of all such Investments assets, determined on an arm’s-length basis, so contributed pursuant to this paragraph (other than intercompany Indebtedness r) shall not in the aggregate exceed $12.0 million, and Guarantees (ii) in respect of Indebtedness) made since each such contribution, a Responsible Officer of the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases Borrower shall certify, in value) a form to be agreed upon by the Borrower and the Guarantors Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing, (y) the fair market value of the assets so contributed, and (z) that the requirements of paragraph (i) of this proviso remain satisfied;
(s) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(t) Investments in Restricted the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) Investments in Foreign Subsidiaries not to exceed $12.0 million in the aggregate, as valued at the fair market value of such Investment at the time such Investment is made;
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(x) Investments by Borrower and the Subsidiaries, including loans and advances to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a dividend or distribution in such amount (provided that are the amount of any such Investment shall also be deemed to be a distribution under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Investments arising as a result of Permitted Receivables Financings;
(z) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(aa) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business;
(bb) Investments received substantially contemporaneously in exchange for Equity Interests of the Borrower;
(cc) Investments in joint ventures not Guarantorsin excess of $12.0 million in the aggregate; provided that if any Investment pursuant to this paragraph (cc) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to paragraph (b) above and shall cease to have been made pursuant to this paragraph (cc) for so long as such person continues to be a Subsidiary of the aggregate principal amount of Indebtedness owing Borrower; and
(dd) in addition to the foregoing Investments, the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors may make additional Investments; provided that, at any the time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an the Payment Conditions are satisfied. The amount equal of Investments that may be made at any time pursuant to any returns Section 6.04(b) or 6.04(j) (such Sections, the “Related Sections”) may, at the election of capital or sale proceeds actually received the Borrower, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of any such Investments (which such amount one Related Section shall not exceed be treated as having been used under the amount of such Investment (as determined above) at the time such Investment was made);other Related Section.
Appears in 1 contract
Samples: Credit Agreement (Verso Paper Corp.)
Investments, Loans and Advances. Purchase, hold Purchase or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of Holdings and the Subsidiaries) to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Person, except except:
(a) Guarantees by the following Borrowers or any Subsidiary of operating leases (collectivelyother than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, “Permitted Investments”):in each case entered into by any Borrower or any Subsidiary in the ordinary course of business;
(i) Investments (other than intercompany loans and Guarantees) by the Company or any Subsidiary in the Company or any Subsidiary; (ii) intercompany loans from the Company or any Subsidiary to the Company or any Subsidiary; (iii) Guarantees by the Company or any Subsidiary of obligations otherwise expressly permitted hereunder of the Company or any Subsidiary; and (iv) the designation of a Person as an Unrestricted Subsidiary; provided that (1) the Transactions sum, without duplication, of (A) such Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof but subtracting therefrom the amount of returns (including payment dividends, interest and other distributions in respect thereof), repayments and proceeds previously received in respect of such Investments and subtracting the Designated Investment Value of any subsidiary of Holdings that ceases to be an Unrestricted Subsidiary pursuant to a Subsidiary Redesignation) after the Effective Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Domestic Subsidiary Loan Parties or pursuant to clause (iv) by designation of a Person as an Unrestricted Subsidiary (with the value of the purchase consideration Investment therein for such purpose being the Designated Investment Value), plus (B) the aggregate outstanding amount of intercompany loans made after the Effective Date by the Loan Parties to Subsidiaries that are not Domestic Subsidiary Loan Parties pursuant to clause (ii), plus (C) the aggregate outstanding amount of Guarantees of Indebtedness made after the Effective Date by the Loan Parties of Subsidiaries that are not Domestic Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate amount equal to (I) $400.0 million, plus (II) the portion, if any, of the Available Amount on the date of such election that Holdings elects to apply to this Section 6.04(b), plus (III) (y) up to $200.0 million of Revolving Facility Loans so long as any Investments made with such Revolving Facility Loans are made in the form of intercompany loans and notes evidencing such intercompany loans are pledged to the Collateral Agent in accordance with the requirements of Section 5.10, minus (z) the aggregate amount of all acquisitions made pursuant to Section 6.05 by any Loan Party in which the Person acquired does not become a Guarantor Subsidiary or the assets acquired are held by a Subsidiary that is not a Loan Party and (2) no Guarantees (other than by one or more Subsidiaries organized under the Merger Agreementlaws of the People’s Republic of China) may be given under this clause (b) in respect of Indebtedness permitted under Section 6.01(v);
(2c) Permitted Investments and investments that were Permitted Investments when made;
(d) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business;
(e) Investments of a Subsidiary acquired after the Effective Date or of a corporation merged into the Company or merged into or consolidated with a Subsidiary in accordance with Section 6.05 after the Effective Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(f) Investments arising out of the receipt by Holdings or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(g) (i) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary of its subsidiaries in the ordinary course of business not to exceed $15.0 30.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof) and (ii) advances of payroll payments and expenses to employees in the ordinary course of business;
(h) accounts receivable arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(i) Swap Agreements permitted pursuant to Section 6.11;
(j) Investments existing on the Effective Date and Investments made pursuant to binding commitments in effect on the Effective Date, to the extent such binding commitments are set forth on Schedule 6.04(j);
(3k) Investments resulting from pledges and deposits referred to in Sections 6.02(f) and (g);
(l) other Investments by Holdings or any Subsidiary in an aggregate amount outstanding (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof net of returns, repayments and proceeds received of such Investments made pursuant to this clause after the Effective Date) not to exceed (i) $250.0 million, plus (ii) the portion, if any, of the Available Amount as of on the date such Investments are made; provided election is made that no Event of Default has occurred and is continuing immediately prior the Company elects to making such Investment or would result therefromapply to this paragraph (l);
(4m) Investments constituting Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Business Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value net outstanding amount of all such Investments (other than intercompany Indebtedness net of returns, repayments and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount Investments) made after the Effective Date and when Holdings is not in compliance with the Incurrence Ratios on a Pro Forma Basis shall not exceed $100.0 million, at all times when Holdings is not in compliance with the Incurrence Ratios on a Pro Forma Basis; provided, further, that Investments by Loan Parties constituting Permitted Business Acquisitions where the acquired business does not become a Guarantor shall be limited as set forth in the proviso to Section 6.04(b);
(n) additional Investments may be made from time to time to the extent made with proceeds of Equity Interests (excluding proceeds received as a result of the exercise of Cure Rights pursuant to Section 7.02) of Holdings, which proceeds or Investments in turn are contributed (as common equity) to the Company;
(o) Investments arising as a result of Permitted Receivables Financings;
(p) Investments (including by the transfer of assets) in joint ventures existing on the Effective Date in an aggregate amount (with assets transferred valued at the fair market value thereof) for all such Investments made after the Effective Date not to exceed $250.0 million net of returns, repayments and proceeds received of such Investment joint ventures after the Effective Date;
(as determined aboveq) at JV Reinvestments;
(r) the time such Investment was madeTransaction;
(s) intercompany loans by Holdings or any of its Subsidiaries to Holdings, Parent or Topco in order to permit Holdings and/or any of the Parent Companies to make payments permitted by Sections 6.07(b) and (c);
(t) Guarantees permitted under Section 6.01(u); and
(u) the transfer of the direct ownership of the Foreign Subsidiaries listed on Schedule 6.04(u), or their assets, to Fxxxx or a direct subsidiary thereof.
Appears in 1 contract
Samples: Credit Agreement (Celanese CORP)
Investments, Loans and Advances. Purchase, hold (i) Purchase or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofof any other person, (ii) make or permit to exist any loans or advances to or Guarantees of the obligations ofIndebtedness of any other person, or make (iii) purchase or permit to exist any investment otherwise acquire, in one transaction or any other interest in a series of related transactions, (eachx) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, a line of business or division of such person (each of the foregoing, an “Investment”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) Investments to effect the Transactions (including payment of the purchase consideration under the Merger Agreement)Transactions;
(2b) (i) Investments (x) by the Borrower or any Subsidiary in the Equity Interests of any Subsidiary as of the Closing Date and set forth on Part A of Schedule 6.04 and (y) by the Borrower or any Subsidiary consisting of intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary as of the Closing Date and set forth on Part B of Schedule 6.04; provided, that to the extent any such intercompany loan that is owing by a non-Guarantor Subsidiary to the Borrower or any Guarantor (the “Scheduled Loans”) (or any additional Investments made by the Borrower or any Guarantor pursuant to this proviso) is repaid after the Closing Date or the Borrower or any Guarantor receives, after the Closing Date, any dividend, distribution, interest payment, return of capital, repayment or other cash amount in respect of any scheduled Investment in the Equity Interests of any non-Guarantor Subsidiary (a “Return of Scheduled Equity”), then additional Investments may be made by the Borrower or any Guarantor in any non-Guarantor Subsidiary in an aggregate amount up to the amount actually received by the Borrower or any Guarantor after the Closing Date as payment in respect of such Investments; provided further that in no event will the aggregate amount of additional Investments made by the Borrower or any Guarantor in non-Guarantor Subsidiaries pursuant to this proviso exceed the sum of the original principal amount of the Scheduled Loans on the Closing Date and the aggregate amount of Returns of Scheduled Equity; (ii) Investments in the Borrower or any Guarantor; (iii) Investments by any Subsidiary that is not a Loan Party in any other Subsidiary that is not a Loan Party; (iv) Investments by the Borrower or any Guarantor in any Subsidiary that is not Loan Party in an aggregate amount for all such outstanding Investments made after the Closing Date not to exceed the greater of $125.0 million and 5.0% of Consolidated Total Assets when made; (v) other intercompany liabilities amongst the Borrower and the Guarantors incurred in the ordinary course of business; (vi) other intercompany liabilities amongst Subsidiaries that are not Guarantors incurred in the ordinary course of business in connection with the cash management operations of such Subsidiaries; and (vii) Investments by the Borrower or any Guarantor in any Subsidiary that is not a Loan Party consisting solely of (x) the contribution or other Disposition of Equity Interests or Indebtedness of any other Subsidiary that is not a Loan Party held directly by the Borrower or such Guarantor in exchange for Indebtedness, Equity Interests (or additional share premium or paid in capital in respect of Equity Interests) or a combination thereof of the Subsidiary to which such contribution or other Disposition is made or (y) an exchange of Equity Interests of any other Subsidiary that is not a Loan Party for Indebtedness of such Subsidiary; provided, that immediately following the consummation of an Investment pursuant to the preceding subclause (x) or (y) of this clause (vii), the Subsidiary whose Equity Interests or Indebtedness are the subject of such Investment remains a Subsidiary;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the Disposition of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 million (i) in the ordinary course of business in an aggregate principal outstanding amount (valued at the time of the making thereof, and without giving effect to any time outstanding (calculated without regard to write-downs or write-offs thereof) not to exceed $10,000,000, (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of the Borrower;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Hedging Agreements entered into for non-speculative purposes;
(h) Investments (not in Subsidiaries, which are provided in clause (b) above) existing on, or contractually committed as of, the Closing Date and set forth on Part C of Schedule 6.04 and any extensions, renewals, replacements or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date or as otherwise permitted by this Section 6.04);
(3i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (n), (q), (r), (dd) and (jj);
(j) other Investments by the Borrower or any Subsidiary in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (aX) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 230.0 million and (ii) 0.5010.0% of Consolidated Total Assets as of the date any such Investment is when made, plus (Y) so long as no Default or Event of Default shall have occurred and be continuing, any portion of the Available Amount on the date of such election that the Borrower elects to apply to this Section 6.04(j)(Y) in a written notice of a Responsible Officer thereof, which notice shall set forth calculations in reasonable detail of the amount of Available Amount immediately prior to such election and the amount thereof elected to be so applied, and plus (Z) an amount equal to any returns (including dividends, interest, distributions, returns of capital or sale proceeds principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investments Investment (excluding any returns in excess of the amount originally invested) pursuant to clause (X); provided, that if any Investment pursuant to this Section 6.04(j) is made in any person that was not a Subsidiary on the date on which such amount shall Investment was made but becomes a Subsidiary thereafter, then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the provisions thereof) and not exceed in reliance on this Section 6.04(j);
(k) Investments constituting Permitted Business Acquisitions;
(l) Investments received in connection with the amount bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower or a Subsidiary as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(m) Investments of a Subsidiary acquired after the Closing Date or of a person merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent such acquisition, merger, amalgamation or consolidation is permitted under this Section 6.04, (ii) in the case of any acquisition, merger, amalgamation or consolidation, in accordance with Section 6.05 and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such Investment acquisition, merger, amalgamation or consolidation;
(n) acquisitions by the Borrower of obligations of one or more officers or other employees of the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of the Borrower, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(o) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capitalized Lease Obligations) or of other obligations that do not constitute Indebtedness of the kind described in clauses (b), (e), (f), (g), (h), (i), (j) or (k) of the definition thereof, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(p) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of the Borrower; provided, that the issuance of such Equity Interests are not included in any determination of the Available Amount;
(q) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;
(r) non-cash Investments made in connection with tax planning and reorganization activities so long as, after giving effect thereto, the security interest of the Lenders in the Collateral, taken as a whole, is not materially impaired (as determined above) at by the time such Investment was madeBorrower in good faith);
(s) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold (i) Purchase or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofof any other person, (ii) make or permit to exist any loans or advances to or Guarantees of the obligations ofIndebtedness of any other person, or make (iii) purchase or permit to exist any investment otherwise acquire, in one transaction or any other interest in a series of related transactions, (eachx) all or substantially all of the property and assets or business of another person or (y) assets constituting a business unit, a line of business or division of such person (each of the foregoing, an “Investment”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions Transactions;
(including payment i) Investments by the Borrower or any Subsidiary in the Equity Interests of the purchase consideration Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary of Indebtedness otherwise permitted hereunder of the Borrower or any Subsidiary; provided, that as at any date of determination, the aggregate outstanding amount (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) of (A) Investments made after the Closing Date by the Loan Parties pursuant to subclause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net outstanding intercompany loans made after the Closing Date by the Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (ii), plus (C) outstanding Guarantees by the Loan Parties of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to subclause (iii), shall not exceed the sum of (X) the greater of $5,000,000 and 0.0165 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period plus (Y) with respect to any Investment made pursuant to clause (X), an amount equal to any returns of capital actually received in respect of any such Investment pursuant to clause (X) (not exceeding the amount of the original investment), it being understood and agreed that clause (Y) replenishes clause (X) and shall not create additional Investment capacity beyond the amount available under the Merger Agreementclause (X);
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of non-cash consideration for the Disposition of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write -downs or write-offs thereof) not to exceed the greater of $15.0 million 5,000,000 and 0.0165 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (ii) in respect of payroll payments and expenses in the ordinary course of business;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Hedging Agreements entered into for non-speculative purposes;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals, replacements or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date or as otherwise permitted by this Section 6.04);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (j), (g), (o), (r), (s), (ee) and (ll);
(j) other Investments by the Borrower or any Subsidiary in an aggregate principal outstanding amount (valued at the time of the making thereof, and without giving effect to any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (aX) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of $30,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period plus (iY) $25.0 million and with respect to any Investment made pursuant to clause (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is madeX), plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments Investment pursuant to clause (X) (not exceeding the amount of the original investment), it being understood and agreed that clause (Y) replenishes clause (X) and shall not create additional Investment capacity beyond the amount available under clause (X); provided that (i) if any Investment pursuant to this Section 6.04(j) is made in any person that was not a Subsidiary on the date on which such Investment was made but thereafter, pursuant to a separate and unrelated transaction, becomes a Subsidiary pursuant to an acquisition permitted under Section 6.04(k), then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and for so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Subsidiary Loan Party) and not in reliance on this Section 6.04(j), provided that, any Investment so deemed shall not replenish or otherwise increase the capacity available pursuant to Section 6.04(k), (ii) no Investments pursuant to this Section 6.04(j) shall be made or deemed made in any Unrestricted Subsidiary and (iii) immediately prior to, and after giving effect to such Investment, no Default or Event of Default shall have occurred or be continuing or would result therefrom;
(k) Investments constituting Permitted Business Acquisitions in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) not to exceed the greater of $20,000,000 and 0.066 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) intercompany loans between Subsidiaries that are not Loan Parties and Guarantees by Subsidiaries that are not Loan Parties permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower or a Subsidiary as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of a person merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent such acquisition, merger or consolidation is permitted under this Section 6.04, (ii) in the case of any acquisition, merger or consolidation, in accordance with Section 6.05 and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of Holdings, any Parent Entity, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capitalized Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of the Borrower, Holdings or any Parent Entity;
(r) [reserved];
(s) Investments consisting of Restricted Payments permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;
(u) [reserved];
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to this Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(x) Investments by the Borrower and its Subsidiaries, including loans to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment under Section 6.06 in such amount (provided, that the amount of any such Investment shall also be deemed to be a Restricted Payment under, and subject to, the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) [reserved];
(z) [reserved];
(aa) to the extent constituting Investments, purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of Intellectual Property in each case in the ordinary course of business;
(bb) Investments received substantially contemporaneously in exchange for Equity Interests of the Borrower, Holdings or any Parent Entity;
(cc) Investments in joint ventures; provided that (i) the aggregate outstanding amount (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) of Investments made after the Closing Date pursuant to this Section 6.04(cc) shall not exceed the sum of (X) the greater of $5,000,000 and 0.0165 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period plus (Y) with respect to any Investment made pursuant to clause (X), an amount equal to any returns of capital actually received in respect of any such Investment pursuant to clause (X) (not exceeding the amount of the original investment), it being understood and agreed that clause (Y) replenishes clause (X) and shall not create additional Investment capacity beyond the amount available under clause (X), and (ii) if any Investment pursuant to this Section 6.04(cc) is made in any person that was not a Subsidiary on the date on which such Investment was made but thereafter, pursuant to a separate and unrelated transaction, becomes a Subsidiary pursuant to an acquisition permitted under Section 6.04(k), then such Investment may, at the option of the Borrower, upon such person becoming a Subsidiary and for so long as such person remains a Subsidiary, be deemed to have been made pursuant to Section 6.04(b) (to the extent permitted by the proviso thereto in the case of any Subsidiary that is not a Subsidiary Loan Party) and not in reliance on this Section 6.04(cc); provided that, any Investment so deemed shall not replenish or otherwise increase the capacity available pursuant to Section 6.04(k);
(dd) [reserved]; and
(ee) Investments in any Unrestricted Subsidiaries consisting solely of cash or Permitted Investments in an aggregate outstanding amount not to exceed the sum of (X) the greater of $10,000,000 and 0.033 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period plus (Y) with respect to any Investment made pursuant to clause (X), an amount equal to any returns of capital actually received in respect of any such Investment pursuant to clause (X) (not exceeding the amount of the original investment), it being understood and agreed that clause (Y) replenishes clause (X) and shall not create additional Investment capacity beyond the amount available under clause (X); provided that immediately prior to, and after giving effect to such Investment, no Default or Event of Default shall have occurred or be continuing or would result therefrom. Any Investment in any person other than the Borrower or a Subsidiary Loan Party that is otherwise permitted by this Section 6.04 may be made through intermediate Investments in Subsidiaries that are not Loan Parties and such intermediate Investments shall be disregarded for purposes of determining the outstanding amount of Investments pursuant to any clause set forth above. The amount of any Investment made other than in the form of cash or Permitted Investments shall be the fair market value thereof (as determined aboveby the Borrower in good faith) valued at the time of the making thereof, and without giving effect to any subsequent write-downs or write-offs thereof. Notwithstanding anything herein to the contrary, after the Second Amendment Effective Date, (i) the aggregate outstanding amount of Investments made pursuant to this Section 6.04 in (x) non-Loan Party Subsidiaries (other than Redbox Entertainment, which shall be subject to the limitations set forth in clauses (i)(y) and (i)(z), as applicable) shall not exceed $5,000,000, (y) for so long as Redbox Entertainment is a Loan Party, Redbox Entertainment shall not exceed $20,000,000 (it being understood and agreed that (i) at the time Redbox Entertainment is released from its guarantee of the Obligations in accordance with Section 9.18, the only assets of Redbox Entertainment that shall be deemed outstanding Investments in Redbox Entertainment for purposes of this Section 6.04 shall be any outstanding cash Investments made by the Loan Parties in Redbox Entertainment at such Investment was madetime and (ii) for the avoidance of doubt, any such cash Investments shall not exceed $10,000,000 at the time Redbox Entertainment is released from its guarantee of the Obligations in accordance with Section 9.18) and (z) for so long as Redbox Entertainment is not a Loan Party, Redbox Entertainment shall not exceed $10,000,000, (ii) the aggregate outstanding amount of Investments in joint ventures (including the Quiver JV) made pursuant to this Section 6.04 shall not exceed $5,000,000 and (iii) all Investments made in (x) non-Loan Party Subsidiaries and joint ventures and (y) Redbox Entertainment (other than those intellectual property and film assets set forth on Schedule 1.01(D) of the Second Amendment) shall, in each case, consist of cash and/or Permitted Investments (provided that it is understood that any non-exclusive license of Intellectual Property not prohibited pursuant to Section 5.01(d) shall not constitute an Investment);. Notwithstanding anything herein to the contrary, Redbox Entertainment and its Subsidiaries shall not be permitted to make any Investments in any Parent Entity or an Affiliate thereof (other than the Borrower or any Restricted Subsidiary thereof).
Appears in 1 contract
Samples: Incremental Assumption and Amendment Agreement (Redbox Entertainment Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interestscapital stock, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations ofto, or make or permit to exist any investment or any other interest in (each, a “Investment”)in, any other PersonPerson (all of the foregoing "Investments"), except the following (collectively, “i) Permitted Investments”):
, (1ii) (A) subordinated promissory notes issued by Great Lakes pursuant to the Transactions terms of the Receivables Agreement (including payment x) in respect of a portion of the purchase consideration price of Credit Card Receivables thereunder and (y) to evidence loans which may be made by the Borrower and CPS to Great Lakes thereunder to enable Great Lakes to pay operating expenses, provided that the aggregate outstanding amount of such loans in respect of such operating expenses shall not exceed $1,000,000 at any time, (B) Seller Notes (as defined in the Receivables Agreement) issued by Great Lakes pursuant to the terms of the Receivables Agreement in respect of a portion of the purchase price of Credit Card Receivables thereunder, and (C) all obligations, indebtedness and liabilities of the Borrower, CPS, Great Lakes and/or any Additional Seller (whether direct or indirect and whether contingent or otherwise) arising under, or in connection with, any of the Receivables Agreement Documents as amended in a manner which does not violate Section 6.14 of this Agreement, (iii) advances by the Borrower to CPS and by CPS to the Borrower, (iv) advances by any Guarantor (other than CPS) to the Borrower and advances by the Borrower to any Guarantor (other than CPS) in an aggregate annual amount for all Guarantors (other than CPS) of $1,125,000, (v) other advances by the Borrower and CPS in the ordinary course of business in an aggregate amount not to exceed $100,000, (vi) investments not in excess of an aggregate of $500,000 during the term of this Agreement in non-operating Subsidiaries of the Borrower (which Subsidiaries shall be required to become a Guarantor and a grantor of Collateral under the Merger this Agreement);
, (2vii) loans and advances to officers, directors, employees or consultants of any Parent Entity, made by the Borrower or any Restricted Subsidiary not Guarantor to exceed the Borrower and/or any other Guarantor pursuant to the Tax-Sharing Agreement (as defined in Section 3.15 of this Agreement), (viii) open market, negotiated, or other purchases of the indebtedness of, claims against, or equity interests in any corporation whose primary business is in the department store industry or in a closely related industry up to (I) $15.0 million 75,000,000 in the aggregate for all such transactions if at the time of such investment the Funded Debt to EBITDA Ratio most recently calculated pursuant to Section 6.06 as shown on the most recent Compliance Certificate delivered is less than or equal to 3.0 to 1.0 or (II) $20,000,000 in the aggregate for all such transactions if at the time of such investment the Funded Debt to EBITDA Ratio most recently calculated pursuant to Section 6.06 as shown on the most recent Compliance Certificate delivered is greater than 3.0 to 1.0, and (ix) advances by the Borrower to NBGL in an aggregate principal amount at any one time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) exceeding $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);25,000,000.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Carson Pirie Scott & Co /Il/)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to Make any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest Investment in (each, a “Investment”), any other Person, except:
(a) (i) Investments in Loan Parties, (ii) Investments by Restricted Subsidiaries that are not Loan Parties in other Restricted Subsidiaries that are not Loan Parties and (iii) Investments existing on the Fourth Amendment Effective Date that are described on Schedule 6.04(a) and extensions, renewals and (in the case of Investments in the form of loans or advances) refinancings thereof so long as no such extension, renewal or refinancing results in an increase in the principal or other invested amount thereof except for, in the following case of loans or advances, by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such extension, renewal or refinancing and by an amount equal to any existing commitments unutilized thereunder;
(collectivelyb) (i) Investments by Loan Parties in Restricted Subsidiaries that are not Loan Parties up to an amount which, when added to all such Investments then outstanding, would not exceed the greater of $10,000,000 and 2.50% of Consolidated Total Assets and (ii) Investments in Unrestricted Subsidiaries up to an amount which, when added to all such Investments then outstanding would not exceed the greater of $10,000,000 and 2.50% of Consolidated Total Assets; provided that, in each case, immediately before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(c) Permitted Investments;
(d) [reserved];
(e) any guarantees by the Borrower and the Restricted Subsidiaries of the operating or commercial obligations (to the extent not constituting Indebtedness) of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business;
(f) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the granting of trade credit in the ordinary course of business, and investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(g) Investments by the Borrower and any Restricted Subsidiary in Hedging Agreements permitted under clause (h) of Section 6.01;
(h) the Borrower or any other Loan Party may acquire all or substantially all the assets of a Person or line of business of such Person, or not less than 100% of the Equity Interests (other than directors’ qualifying shares) of a Person (referred to herein as the “Acquired Entity”); provided that (i) the Acquired Entity shall be in a Permitted Business and (ii) (A) (x) both immediately before and after the time on which the definitive agreements for such Investment are entered into and after giving pro forma effect to such Investment, no Default or Event of Default shall have occurred and be continuing or result therefrom and (y) at the time of such transaction, no Default or Event of Default shall have occurred and be continuing or result therefrom under paragraph (b), (c), (g) or (h) of Article VII; (B) both immediately before and after the time on which the definitive agreements for such Investment are entered into and after giving pro forma effect to such Investment, the Borrower must be in Financial Covenant Compliance; (C) at the time of such transaction the Borrower or any Restricted Subsidiary shall have delivered to the Administrative Agent a certificate of a Responsible Officer certifying as to the foregoing and containing reasonably detailed calculations in support thereof, in form reasonably satisfactory to the Administrative Agent; and (D) the Borrower and any Restricted Subsidiary shall comply, and shall cause the Acquired Entity to comply, with the applicable provisions of Section 5.13 and the Security Documents within the periods provided for in Section 5.13 (any acquisition of an Acquired Entity meeting all the criteria of this Section 6.04(h) being referred to herein as a “Permitted InvestmentsAcquisition”):); provided that the aggregate amount of Investments made by Loan Parties pursuant to this Section 6.04(h) in assets that are not (or do not become) owned by a Loan Party or in Equity Interests in Persons that do not become Loan Parties upon consummation of such Permitted Acquisition shall not exceed the greater of $35,000,000 and 6.00% of Consolidated Total Assets;
(1i) 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, (ii) Investments by the Borrower and the Restricted Subsidiaries in prepaid expenses, negotiable instruments held for collection, lease, worker’s compensation, performance and other similar deposits provided to third parties in the ordinary course of business and insurance claim receivables and (iii) the Transactions Transactions;
(including j) any Drop-Down Acquisition or Material Subsequent Facility Payment; provided that (i) such Drop-Down Acquisition or Material Subsequent Facility Payment and the material terms and conditions thereof have been approved by the Conflicts Committee; (ii) (A) at the time of such acquisition or payment the Facility comprising such Drop-Down Acquisition, or with respect to which such Material Subsequent Facility Payment relates, has achieved Commercial Operation and (B) (x) both immediately before and after the time on which the definitive agreements for such Investment are entered into, no Default or Event of Default shall have occurred and be continuing and (y) at the time of such transaction, no Default or Event of Default shall have occurred and be continuing under paragraph (b), (c), (g) or (h) of Article VII; (iii) in the case of any Drop-Down Acquisition of a Wood Pellet Production Facility, the Projected Contracted Capacity for the thirty six-month period beginning on the date on which such acquisition occurs is (A) at least 75% (determined pursuant to clause (i) of the purchase consideration under definition of “Applicable Wood Pellet Production Facilities”) or (B) at least 75% (determined pursuant to clause (ii) of the Merger Agreementdefinition of “Applicable Wood Pellet Production Facilities”) (and the Borrower shall have delivered a certificate of a Responsible Officer certifying as to the foregoing and containing reasonably detailed calculations in support thereof, in form reasonably satisfactory to the Administrative Agent); and (iv) the Borrower and any Restricted Subsidiary shall comply, and shall cause any acquired entity to comply, with the applicable provisions of Section 5.13 and the Security Documents within the periods provided for therein (any Drop-Down Acquisition or Material Subsequent Facility Payment meeting all relevant criteria of this Section 6.04(j) being referred to herein as a “Permitted Drop-Down Acquisition”);
(2k) to the extent not prohibited by applicable law, loans and advances to officers, directors, managers, consultants and employees of the Borrower or consultants its Subsidiaries in an aggregate amount not to exceed $1,000,000 at any time outstanding for travel, entertainment, relocation and other business purposes in the ordinary course of business;
(l) Investments in the form of seller “take-back” notes and other non-cash consideration in connection with a Disposition permitted by Section 6.05;
(m) so long as (i) any Parent EntityFarm Credit Lender is a Lender or Voting Participant hereunder and (ii) such Farm Credit Lender has notified the Borrower that it is eligible to receive patronage distributions directly from such Farm Credit Lender or one of its Affiliates on account of its portion of a Term Loan made (or participated in) by such Farm Credit Lender hereunder, Investments made by the Borrower as a condition to receiving such patronage distributions in the form of an acquisition of equity in such Farm Credit Lender or one of its Affiliates in such amounts and at such times as such Farm Credit Lender may require in accordance with such Farm Credit Lender’s or its Affiliate’s Organizational Documents and capital plan (as each may be amended from time to time); provided that the maximum amount of equity that the Borrower shall be required to acquire in such Farm Credit Lender or one of its Affiliates in connection with the portion of such Term Loan made by such Farm Credit Lender hereunder may not exceed the maximum amount permitted by the relevant Organizational Documents and the capital plan of such Farm Credit Lender (x) as in effect on the Original Closing Date or (y) in the case of a Farm Credit Lender that becomes a Lender or Voting Participant as a result of an assignment or participation, in either case pursuant to Section 9.04, at the time of the closing of such assignment or participation;
(n) in addition to Investments permitted by paragraphs (a) through (m) above, additional Investments by the Borrower or any Restricted Subsidiary so long as (i) the amount invested pursuant to this paragraph (n) does not to exceed $15.0 million in an aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not equal to exceed the Available Amount at the time such amount is invested (ii) both immediately before and after the time on which the definitive agreements for such Investment are entered into, no Default or Event of Default shall have occurred and be continuing and (iii) other than with regard to Investments made with proceeds arising from clause (i)(x) of the definition of Available Amount, as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making on which the definitive agreements for such Investment are entered into, the Total Leverage Ratio (after giving pro forma effect to such Investment) shall be less than or would result therefromequal to 3.50:1.00;
(4o) Permitted Acquisitions and pre-existing in addition to Investments held permitted by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of paragraphs (a) through (n) above, additional Investments by the aggregate fair market value Borrower or any Restricted Subsidiary from Available Cash (or amounts that would otherwise have constituted Available Cash if not reserved) to the extent the conditions set forth in Section 6.06(a)(ii) are satisfied at the time of such Investment; and
(p) in addition to Investments permitted by paragraphs (a) through (o) above, other Investments by the Borrower or any Restricted Subsidiary up to an amount which, when added to all such Investments (other than intercompany Indebtedness and Guarantees of Indebtednessmade pursuant to this Section 6.04(p) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time then outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may would not exceed the greater of (i) $25.0 million 20,000,000 and (ii) 0.50an amount equal to 5.00% of Consolidated Total Assets Assets. For purposes of determining compliance with this Section 6.04: (i) in the event that an investment (or any portion thereof) meets the criteria of more than one of the categories of investments permitted in this Section 6.04, the Borrower and a Restricted Subsidiary, as the case may be, in its sole discretion, may classify at the time of investment such investment (or any portion thereof) and will only be required to include such investment in one of the categories of investments permitted in this Section 6.04; (ii) at the time of incurrence the Borrower or a Restricted Subsidiary, as the case may be, in its sole discretion, may divide and classify an investment in more than one of the categories of investments permitted in this Section 6.04; (iii) Investments which are capital contributions or purchases of Equity Interests or are purchases of assets (other than Equity Interests) shall be valued at the amount (or, in the case of any Investment made with property other than cash, the fair market value of such property as determined by the Borrower in good faith) actually contributed or paid (including any assumption of Indebtedness) to purchase such Equity Interests or other assets as of the date any of such Investment is madecontribution or payment less, plus an amount equal to any returns in the case of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount contributions and Equity Interests, returns on and of such Investment (as determined aboveother than Investments under clause (n) of this Section 6.04 made using the Available Amount); and (iv) Investments which are loans, advances or extensions of credit shall be valued at the time principal amount of such loan, advance or extension of credit outstanding as of the date of determination. Accrual of interest or dividends, the accretion of accreted value and the payment of interest or dividends in the form of additional Investments will not be deemed to be the making of an Investment was made);for purposes of this Section 6.04.
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) (i) Investments by the following Company or any Subsidiary in the Equity Interests of the Company or any Subsidiary; (collectivelyii) intercompany loans from the Company or any Subsidiary to the Company or any Subsidiary; and (iii) Guarantees by the Borrower or the Subsidiary Guarantor of Indebtedness otherwise expressly permitted hereunder of the Company or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) $[*] and (2) [*]% of Consolidated Total Assets (plus any return of capital actually received by the Transactions respective investors in respect of Investments theretofore made by them that reduced the amount available pursuant to this paragraph (including payment a)proviso); plus (y) the portion, if any, of the purchase consideration under Cumulative Credit on the Merger Agreementdate of such election that the Company elects to apply to this Section 6.04(a)(y), such election to be specified in a written notice of a Responsible Officer of the Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided further, that the limitations in this paragraph shall not apply to any Investment entered into at a time when the Company is in Ratio Compliance; provided, still further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(2b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by the Company or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05;
(d) loans and advances to current and former officers, directors, employees or consultants of any Parent Entity, the Borrower Company or any Restricted Subsidiary (i) in the ordinary course of business not to exceed the greater of (x) $15.0 million [*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of a Parent Entity solely to the extent that the amount of such loans and advances shall be contributed to the Company in cash as common equity;
(e) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(f) Swap Agreements permitted pursuant to Section 6.10;
(g) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (g) is not increased at any time above the amount of such Investment existing on the Closing Date;
(h) Investments resulting from pledges and deposits under Section 6.02(f);
(3i) other Investments by the Company or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(41) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million [*] and (ii) 0.50[*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 plus (2) the portion, if any, of the Cumulative Credit on the date of such election that the Company elects to apply to this Section 6.04(i)(2), such election to be specified in a written notice of a Responsible Officer of the Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided further, that the limitations in this paragraph shall not apply to any Investment entered into if, immediately after giving effect thereto, on a Pro Forma Basis, (i) either (A) the Loan-to-Value Ratio is equal to or less than [*] to 1.0 or (B) the Fixed Charge Coverage Ratio is at least [*] to 1.0 and (ii) the Company is in Pro Forma Compliance;
(j) Investments constituting Permitted Business Acquisitions;
(k) intercompany loans permitted by Section 6.01(e);
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Company as a result of a foreclosure by the Company or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(m) Investments of a Subsidiary acquired after the Closing Date or of a person merged into any Loan Party or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent permitted under this Section 6.04, (ii) in the case of any acquisition, merger or consolidation, in accordance with Section 6.05, and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(n) acquisitions by the Company or any Subsidiary of obligations of one or more officers or other employees of any Loan Party or any Subsidiary in connection with such officer’s or employee’s acquisition of Equity Interests of the Company or any Parent Entity, so long as no cash is actually advanced by any Loan Party or any Subsidiary to such officers or employees in connection with the acquisition of any such obligations;
(o) Guarantees by the Company or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Company or any Subsidiary in the ordinary course of business;
(p) Investments to the extent that payment for such Investments is made with Equity Interests of any Parent Entity;
(q) Investments in the Equity Interests of one or more newly formed persons that are received in consideration of the contribution by the Company or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided, that (i) the fair market value of such assets, determined on an arm’s-length basis, so contributed pursuant to this paragraph (q) shall not in the aggregate exceed the greater of (x) $[*] and (y) and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment is made, plus an amount equal for which financial statements have been delivered pursuant to any returns of capital or sale proceeds actually received Section 5.04 and (ii) in respect of each such contribution, a Responsible Officer of the Company shall certify, in a form to be agreed upon by the Company and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (y) the fair market value of the assets so contributed and (z) that the requirements of clause (i) of this proviso remain satisfied;
(r) Investments consisting of the redemption, purchase, repurchase or retirement of any such Equity Interests permitted under Section 6.06;
(s) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(which such amount shall t) Investments in Subsidiaries that are not Loan Parties not to exceed the amount greater of (x) $[*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment (for which financial statements have been delivered pursuant to Section 5.04 in the aggregate, as determined above) valued at the fair market value of such Investment at the time such Investment was is made;
(u) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to this Section 6.04);
(v) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Company or such Subsidiary;
(w) Investments by Company and its Subsidiaries, including loans to any direct or indirect parent of the Company, if the Company or any other Subsidiary would otherwise be permitted to make a dividend or distribution in such amount (provided that the amount of any such Investment shall also be deemed to be a distribution under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(x) Investments if after giving effect to such Investments, the Total Leverage Ratio is equal to or less than 3.30 to 1.00;
(y) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(z) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business;
(aa) Investments received substantially contemporaneously in exchange for Equity Interests of the Company; provided that such Investments are not included in any determination of the Cumulative Credit;
(bb) Investments in joint ventures in an aggregate amount not to exceed the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04;
(cc) Permitted Vessel Transfers;
(dd) Investments in New Vessel Subsidiaries; and
(ee) Investments in a Similar Business in an aggregate amount (valued at the time of making thereof, and without giving effect to any write downs or any write offs thereof) not to exceed (x) the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (ee)) plus (y) the Cumulative Credit; provided that if any Investment pursuant to this paragraph (ee) is made in any person that is not a Subsidiary of the Company at the date of the making of such Investment and such person becomes a Subsidiary of the Company after such date, such Investment shall thereafter be deemed to have been made pursuant to paragraph (a) above and shall cease to have been made pursuant to this paragraph (ee) for so long as such person continues to be a Subsidiary of the Company; The amount of Investments that may be made at any time pursuant to Section 6.04(a) or (j) (such Sections, the “Related Sections”) may, at the election of the Company, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Investments, Loans and Advances. Purchase, hold Make or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a “Investment”), any other Person, except the following (collectively, “Permitted Investments”):an Investment except:
(1a) Investments in joint ventures not to exceed in the Transactions aggregate $100.0 million at any one time outstanding; provided that (including payment i) no Event of Default shall have occurred and be continuing or would result therefrom, and (ii) (x) 30-Day Excess Availability (divided by Availability on such date and expressed as a percentage) and Excess Availability (divided by Availability on such date and expressed as a percentage) each exceed 17.5% and (y) unless 30-Day Excess Availability (divided by Availability on such date and expressed as a percentage) and Excess Availability (divided by Availability on such date and expressed as a percentage) each exceed 22.5%, the purchase consideration under Parent Borrower shall be in Pro Forma Basis compliance with the Merger AgreementFinancial Performance Covenant (whether or not required to be complied with);
(2b) Investments by the Parent Borrower or any Restricted Subsidiary in the Parent Borrower or any Restricted Subsidiary made for tax planning and reorganization purposes, so long as the value of the Collateral on a Pro Forma Basis after giving effect to such Investments, taken as a whole, is not materially impaired (as reasonably determined by the Borrower Representative, which determination shall be conclusive);
(c) Cash Equivalents and Investments that were Cash Equivalents when made;
(d) Investments arising out of the receipt by the Parent Borrower or any Restricted Subsidiary of non-cash consideration for the sale or other disposition of assets permitted under Section 6.4;
(e) loans and advances to officers, directors, employees or consultants of any the Parent Entity, the Borrower or any Restricted Subsidiary (i) not to exceed in the aggregate $15.0 10.0 million in an aggregate principal amount at any time outstanding outstanding, (calculated without regard ii) for reasonable and customary business and related travel, entertainment, relocation and analogous ordinary business purposes, or (iii) in respect of payroll payments and expenses in the ordinary course of business;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors and any prepayments and other credits to write-downs suppliers made in the ordinary course of business;
(g) Hedge Agreements not entered into for speculative purposes;
(h) Investments existing on, or write-offs thereof after contractually committed as of, the date madeClosing Date and set forth on Schedule 6.3;
(i) Investments resulting from pledges and deposits referred to in Sections 6.2(h), (i), (x), (z), (cc) and (gg);
(3j) Investments in an amount not repurchases of Junior Financing permitted pursuant to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefromSection 6.8(a)(1);
(4k) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with constituting Permitted Acquisitions;
(5l) intercompany Investments among of the Parent Borrower in any Restricted Subsidiary or any entity that becomes a Credit Party in connection and substantially concurrently with such Investment and of any Restricted Subsidiary in the Parent Borrower or in any other Restricted Subsidiary or any entity that becomes a Restricted Subsidiary in connection and substantially concurrently with such Investment;
(m) [reserved];
(n) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers, distributors and suppliers, or Investments acquired by the Parent Borrower or any Restricted Subsidiary as a result of a foreclosure by the Parent Borrower or any of the Restricted Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(o) Investments of a Credit Party acquired after the Closing Date or of an entity merged into, or amalgamated or consolidated with, the Parent Borrower or merged into or amalgamated or consolidated with a Credit Party in accordance with Section 6.4 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence or had been committed to be made on the date of such acquisition, merger or consolidation;
(p) Investments in exchange for Equity Interests of the Parent Borrower or of any Parent Holding Company;
(q) guarantees by the Parent Borrower or any Restricted Subsidiary of obligations that do not constitute Indebtedness and are not otherwise prohibited hereunder, in each case, entered into by the Parent Borrower or any Restricted Subsidiary in the ordinary course of business;
(r) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.5; provided that any such Investments shall constitute a utilization of the applicable provision or provisions (without double counting) under Section 6.5;
(s) Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade arrangements with customers and foreign law equivalent interests;
(t) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Parent Borrower or any Restricted Subsidiary;
(u) Investments by the Parent Borrower or any Restricted Subsidiaries, if the Parent Borrower or any Restricted Subsidiary would otherwise be permitted to make a Restricted Payment in such amount (provided that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 6.5 for all purposes of this Agreement);
(v) acquisitions by any Credit Party of Investments evidencing obligations owed by one or more officers or other employees of the Parent Borrower, such Credit Party or its subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of the Parent Borrower or of any Parent Holding Company, so long as no cash is actually advanced in connection with the acquisition of any such obligations;
(w) guarantees permitted under Section 6.1 (except to the extent such guarantee is expressly subject to this Section 6.3);
(x) Investments consisting of the licensing, sublicensing, covenants not to sxx, releases or other rights under Intellectual Property (including intercompany Indebtedness)in connection with distribution, license and supply agreements) in the ordinary course of business or which in the reasonable business judgment of the Borrower Representative would not impair any Credit Party’s interest in Intellectual Property that is material to the business of the Parent Borrower and its subsidiaries, taken as a whole;
(y) Investments consisting of purchases and acquisitions of inventory, supplies, goods, materials and equipment or purchases of contract rights or leases, in each case, in the ordinary course of business;
(z) Investments consisting of purchases and acquisitions of Intellectual Property in the ordinary course of business or which in the reasonable business judgment of the Borrower Representative would not impair any Credit Party’s interest in Intellectual Property that is material to the business of the Parent Borrower and its subsidiaries, taken as a whole;
(aa) Investments in assets useful in the business of the Parent Borrower and any of its Restricted Subsidiaries made with the proceeds of any Reinvestment Deferred Amount (as such term is defined in the Term Loan Agreement) or Below Threshold Asset SaleNet Cash Proceeds (as such term is defined in the Term Loan Agreement)Indentures) that are not applied to prepay the Obligations, the obligations under the Second Lien Credit Agreement or the obligations under the Term Loan Notes, in each case, as permitted under Section 3.7 of the Indentures; provided that if the underlying Asset Sale or Casualty Event (as such term is defined in the Term Loan AgreementIndentures) was with respect to a Borrower or a Guarantor, then such Investment shall be consummated by a Borrower or a Guarantor;
(bb) Investments in permitted Indebtedness of the Parent Borrower and its Restricted Subsidiaries; provided that the sum aggregate principal amount of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in valuepursuant to this Section 6.3(bb) by the Borrower and the Guarantors Credit Parties in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstandingCredit Parties, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may shall not exceed the greater of (ix) $25.0 million and (iiy) 0.501.45% of Consolidated Total Assets Assets; provided further that (i) no Event of Default shall have occurred and be continuing or would result therefrom, and (ii) (x) 30-Day Excess Availability (divided by Availability on such date and expressed as a percentage) and Excess Availability (divided by Availability on such date and expressed as a percentage) each exceed 17.5% and (y) unless 30-Day Excess Availability (divided by Availability on such date and expressed as a percentage) and Excess Availability (divided by Availability on such date and expressed as a percentage) each exceed 22.5%, the Parent Borrower shall be in Pro Forma Basis compliance with the Financial Performance Covenant (whether or not required to be complied with); and
(cc) other Investments by the Parent Borrower or any Restricted Subsidiary in Persons that are Credit Parties or that will become Credit Parties in connection with such Investment; provided that (i) no Event of Default shall have occurred and be continuing or would result therefrom, and (ii) (x) 30-Day Excess Availability (divided by Availability on such date and expressed as a percentage) and Excess Availability (divided by Availability on such date and expressed as a percentage) each exceed 17.5% and (y) unless 30-Day Excess Availability (divided by Availability on such date and expressed as a percentage) and Excess Availability (divided by Availability on such date and expressed as a percentage) each exceed 22.5%, the Parent Borrower shall be in Pro Forma Basis compliance with the Financial Performance Covenant (whether or not required to be complied with). For purposes of determining compliance with this Section 6.3 and subject to the immediately following proviso, (A) Investments need not be permitted solely by reference to one category of permitted Indebtedness described in Sections 6.3(a) through (cc) but may be permitted in part under any combination thereof and (B) in the event that an Investment (or any portion thereof) meets the criteria of one or more of the date any categories of permitted Investments described in Sections 6.3(a) through (cc), the Borrower Representative shall, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such Investment is made, plus an amount equal (or any portion thereof) in any manner that complies with this Section 6.3 and will only be required to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed include the amount and type of such Investment (as determined aboveor any portion thereof) at in one of the time above clauses and such Investment was made);shall be treated as having been made or existing pursuant to only one of such clauses.
Appears in 1 contract
Samples: Credit and Guaranty Agreement and Pledge and Security Agreement (Lannett Co Inc)
Investments, Loans and Advances. PurchaseThe Borrower will not, hold or acquire (including pursuant to and will not permit any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Restricted Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities ofto, make or permit to exist remain outstanding any loans Investments in or advances to or Guarantees any Person, except that the foregoing restriction shall not apply to:
(a) Investments as of the Effective Date which are disclosed to the Lenders in Schedule 9.05;
(i) accounts or notes receivable arising in the ordinary course of business; (ii) advances in the form of a prepayment of fees and expenses by the Borrower or a Restricted Subsidiary, so long as such expenses are being paid in accordance with customary trade terms of the Borrower and its Restricted Subsidiaries, (iii) advances of payroll payments to employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business and (iv) Investments received in satisfaction or partial satisfaction thereof from account debtors and other credits to suppliers in the ordinary course of business arising from the settlement of delinquent obligations or disputes in respect of a secured Investment;
(c) Investments in cash and Cash Equivalents;
(d) Investments (i) made by the Borrower or any Subsidiary Guarantor in or to the Borrower or any Subsidiary Guarantor, (ii) made by any Restricted Subsidiary in or to the Borrower or any Subsidiary Guarantor and (iii) made by any Restricted Subsidiary that is not a Guarantor in or to any other Restricted Subsidiary that is not a Guarantor;
(e) subject to the limits in Section 9.07, Investments in direct ownership interests in additional Oil and Gas Properties and gas gathering systems related thereto or related to farm-out, farm-in, joint operating, joint venture or area of mutual interest agreements, gathering systems, pipelines or other similar arrangements which are usual and customary in the oil and gas exploration and production business located within the geographic boundaries of the United States of America;
(f) Investments in stock, obligations or securities received in settlement of debts arising from Investments permitted under this Section 9.05 or from accounts receivable arising in the ordinary course of business, which Investments are obtained by the Borrower or any other Restricted Subsidiary as a result of a bankruptcy or other insolvency proceeding of, or difficulties in collecting from, the obligor in respect of such obligations, provided that the Borrower shall give the Administrative Agent prompt written notice in the event that the aggregate amount of all Investments held at any one time under this Section 9.05(f) exceeds $2,000,000;
(g) the Borrower and the Restricted Subsidiaries may make or permit other cash Investments (i) to exist any investment or the extent clause (ii) below does not apply, in an amount not to exceed 100% of Distributable Free Cash Flow after giving pro forma effect to such Investment (and any other interest Free Cash Flow Utilizations occurring on or prior to such date) so long as (A) after giving effect to such Investment (and any Borrowings incurred in connection therewith), Commitments available to be drawn are greater than or equal to 20% of the Loan Limit in effect at such time and (B) after giving effect to such Investment (and any Debt incurred in connection therewith), the Net Leverage Ratio on a pro forma basis is less than or equal to 1.75 to 1.00 and (ii) without limit so long as (A) after giving effect to such Investment (and any Borrowings incurred in connection therewith), Commitments available to be drawn are greater than or equal to 25% of the Loan Limit in effect at such time and (B) after giving effect to such Investment (and any Borrowings incurred in connection therewith), the Net Leverage Ratio on a pro forma basis is less than or equal to 1.50 to 1.00; provided that (x) no such Investment may be made in reliance on this clause (h) if any Default, Event of Default or Borrowing Base Deficiency exits at the time of such Investment or would result therefrom and (y) no Investment may be made in any Unrestricted Subsidiary in reliance on this clause (g);
(h) subject to the limits in Section 9.06 and Section 9.07, Investments (including, without limitation, capital contributions) in (eachi) Unrestricted Subsidiaries or (ii) in general or limited partnerships or other types of entities (each in this clause (ii), a “Investmentventure”)) formed or incorporated, as the case may be, under applicable state law, by the Borrower or any Subsidiary, on the one hand, and any other Person, except on the following other hand, in the ordinary course of business; provided that (collectivelyA) any such Unrestricted Subsidiary or venture is engaged exclusively in the ownership, “Permitted Investments”):
operation or development of Oil and Gas Properties, and any other oil and gas exploration, development, production, processing, treatment, compression, storage and related activities, including gathering and transportation, (1B) the Transactions interest in such Unrestricted Subsidiary or venture is acquired in the ordinary course of business and on fair and reasonable terms and (including payment C) such Unrestricted Subsidiary or venture interests acquired and capital contributions made (valued as of the purchase consideration under date such interest was acquired or the Merger Agreement)contribution made) do not exceed, in the aggregate at any one time outstanding, an amount equal to $5,000,000;
(2i) loans and advances to officers, directors, employees or and consultants of the Borrower (or Holdings) or any Parent Entityof its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Equity Interests of the Borrower (or Holdings); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Equity Interests shall be contributed to the Borrower or any Restricted Subsidiary not to exceed $15.0 million Guarantor in cash or (iii) in the ordinary course of business in an aggregate principal amount at any time for all amounts incurred under this Section 9.05(i) outstanding (calculated without regard not to write-downs or write-offs thereof after the date made)exceed $1,000,000;
(3j) Investments held by a Person acquired (including by way of merger or consolidation) after the Effective Date otherwise in an amount accordance with this Section 9.05 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments constituting non-cash proceeds of dispositions of assets permitted by Section 9.12; and
(1) other Investments not to exceed in the Available Amount as of aggregate at any one time outstanding an amount equal to $5,000,000. Notwithstanding anything herein to the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among contrary, the Borrower will not, and the will not permit any Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Subsidiary to, make any Investments (other than intercompany Indebtedness and Guarantees of IndebtednessInvestments made in cash) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases in any Unrestricted Subsidiaries or decreases in value) by the Borrower and the Guarantors in Restricted any other Subsidiaries or Persons that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);.
Appears in 1 contract
Samples: Credit Agreement (BKV Corp)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) (i) Investments by the following Company or any Subsidiary in the Equity Interests of the Company or any Subsidiary; (collectivelyii) intercompany loans from the Company or any Subsidiary to the Company or any Subsidiary; and (iii) Guarantees by the Borrower or the Subsidiary Guarantor of Indebtedness otherwise expressly permitted hereunder of the Company or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) $[*] and (2) [*]% of Consolidated Total Assets (plus any return of capital actually received by the Transactions respective investors in respect of Investments theretofore made by them pursuant to this paragraph (including payment a); plus (y) the portion, if any, of the purchase consideration under Cumulative Credit on the Merger Agreementdate of such election that the Company elects to apply to this Section 6.04(a)(y), such election to be specified in a written notice of a Responsible Officer of the Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided further, that the limitations in this paragraph shall not apply to any Investment entered into at a time when the Company is in Ratio Compliance; provided, still further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(2b) Permitted Investments and Investments that were Permitted Investments when made;
(c) Investments arising out of the receipt by the Company or any Subsidiary of non‑cash consideration for the sale of assets permitted under Section 6.05;
(d) loans and advances to current and former officers, directors, employees or consultants of any Parent Entity, the Borrower Company or any Restricted Subsidiary (i) in the ordinary course of business not to exceed the greater of (x) $15.0 million [*] and (y) [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 in an the aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of a Parent Entity solely to the extent that the amount of such loans and advances shall be contributed to the Company in cash as common equity;
(e) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof after from financially troubled account debtors to the date madeextent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(f) Swap Agreements permitted pursuant to Section 6.10;
(g) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (g) is not increased at any time above the amount of such Investment existing on the Closing Date;
(h) Investments resulting from pledges and deposits under Section 6.02(f);
(3i) other Investments by the Company or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(41) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million [*] and (ii) 0.50[*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date any of such Investment is madefor which financial statements have been delivered pursuant to Section 5.04 plus (2) the portion, plus an amount equal if any, of the Cumulative Credit on the date of such election that the Company elects to any returns apply to this Section 6.04(i)(2), such election to be specified in a written notice of capital or sale proceeds actually received a Responsible Officer of the Company calculating in respect of any such Investments (which such amount shall not exceed reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided further, that the limitations in this paragraph shall not apply to any Investment entered into if, immediately after giving effect thereto, on a Pro Forma Basis, (as determined abovei) either (A) the Loan-to-Value Ratio is equal to or less than [*] to 1.0 or (B) the Fixed Charge Coverage Ratio is at least [*] to 1.0 and (ii) the time such Investment was madeCompany is in Pro Forma Compliance;
(j) Investments constituting Permitted Business Acquisitions;
(k) intercompany loans permitted by Section 6.01(e);
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Company as a result of a foreclosure by the Company or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Wholly-Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions Transactions;
(including payment i) Investments by the Borrower or any Subsidiary in the Equity Interests of the purchase Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary of Indebtedness otherwise permitted hereunder of the Borrower or any Subsidiary; provided that (A) Investments made after the Closing Date by the Borrower or any Subsidiary Loan Party pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, (B) intercompany loans made after the Closing Date by the Borrower or any Subsidiary Loan Party to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii) and (C) Guarantees after the Closing Date by the Borrower or any Subsidiary Loan Party of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii) shall not be permitted under this Section 6.04(b); provided further that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations and intercompany sales of the Borrower and the Subsidiaries shall not be subject to the preceding proviso;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under the Merger AgreementSection 6.05 (other than Section 6.05(h));
(2e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 1.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of any Parent Entity solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements that are not entered into for speculative purposes;
(h) Investments existing on, or contractually committed as of, the Closing Date consisting of intercompany loans or as set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this paragraph (h) is not increased at any time above the amount of such Investment existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), (u) and (dd);
(j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4i) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 15.0 million and (ii) 0.501.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date any of such Investment is made, for which financial statements have been delivered pursuant to Section 5.04 (plus an amount equal to any returns of capital or sale proceeds actually received by the respective investor in respect of any investments theretofore made by it pursuant to this paragraph (j)) plus (ii) the portion, if any, of the Cumulative Credit on the date of such Investments (which election that the Borrower elects to apply to this Section 6.04(j)(ii), such amount shall not exceed election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided that, if any Investment pursuant to this paragraph (j) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment (as determined above) and such person becomes a Subsidiary of the Borrower after such date, such Investment shall, at the time election of the Borrower, thereafter be deemed to have been made pursuant to paragraph (b) above and shall cease to have been made pursuant to this paragraph (j) for so long as such person continues to be a Subsidiary of the Borrower;
(k) Investments constituting Permitted Business Acquisitions;
(l) [reserved];
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) after the Commencement of Operations, Investments of a Subsidiary acquired after the Closing Date or of an entity merged into the Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, (i) to the extent such acquisition, merger or consolidation was or is permitted under this Section 6.04 or Section 6.05 and (ii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of any Parent Entity, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of any Parent Entity, so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of the Borrower or any Parent Entity;
(r) Investments in joint ventures established to develop or operate nightclubs, bars, restaurants, recreation, exercise or gym facilities, or entertainment or retail venues or similar or related establishments or facilities within the Development, which Investments may be made pursuant to (or in lieu of) dispositions in the manner contemplated under Sections 6.05(p) or received in consideration for dispositions under Sections 6.05(p);
(s) Investments consisting of Restricted Payments permitted by Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) [reserved];
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or the applicable Subsidiary;
(x) Investments by the Borrower and its Subsidiaries, including loans and advances to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount (provided that the amount of any such Investment was madeshall also be deemed to be a Restricted Payment under the appropriate paragraph of Section 6.06 for all purposes of this Agreement);
(y) [reserved];
(z) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(aa) purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business, to the extent such purchases and acquisitions constitute Investments;
(bb) Investments received substantially contemporaneously in exchange for or with the proceeds of Qualified Equity Interests of the Borrower; provided that such Investments are not included in any determination of the Cumulative Credit;
(cc) to the extent constituting Investments, any Loan Party may consummate a transaction permitted by Section 6.05 and any Loan Party may take actions permitted pursuant to Section 6.07; (dd) any Investment made pursuant to the Master Lease Agreement and any Operations Management Agreement; and
Appears in 1 contract
Investments, Loans and Advances. PurchaseThe Borrower will not, and will not cause or permit any of the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity InterestsCapital Stock, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans loans, extensions of credit or advances to or Guarantees of the obligations to, make guarantees in favor of, or make or permit to exist any investment other investment, capital contribution or any other interest in (each, a “Investment”)in, any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1i) equity investments existing on the Transactions Closing Date by the Borrower in the Subsidiaries and listed on Schedule 6.04, (including payment ii) contributions of equity made after the Closing Date to Wholly Owned Subsidiaries of the purchase consideration under Borrower that do not exceed $1,000,000 in the Merger Agreementaggregate during any Fiscal Year, as long as such contributions are not made for the purpose of funding an acquisition not otherwise permitted hereunder, and (iii) treasury stock held by the Borrower and its Subsidiaries on the Closing Date and listed on Schedule 6.04 or acquired by the Borrower or a Subsidiary as permitted pursuant to Section 6.06(a);
(2b) loans and advances to officers, directors, employees or consultants of any Parent Entity, made after the Closing Date by the Borrower or any Restricted Wholly Owned Subsidiary that is a Domestic Subsidiary to any Subsidiary or the Borrower; PROVIDED, THAT, any such loan or advance (i) is evidenced by an Intercompany Note pledged and delivered to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement (other than as excepted in clause (iii) of Section 6.01(c)), and (ii) is otherwise permitted pursuant to Section 6.01(c);
(c) trade accounts receivable (and related notes and instruments) arising in the ordinary course of business consistent with past practices;
(i) advances to employees for home-swing loans and moving and travel expenses in the ordinary course of business consistent with past practices, and guarantees by the Borrower in connection with home-swing loans of third parties to employees, that, in the aggregate, do not exceed $1,000,000 at any one time outstanding and (ii) loans to executive officers of the Borrower to assist in the payment of taxes resulting from an election made under Section 83(b) of the Code which shall not exceed $500,000 in the aggregate at any one time outstanding;
(e) Cash Equivalents;
(f) securities held by the Borrower or any of the Subsidiaries prior to the Closing Date and listed in Schedule 6.04;
(g) one or more non-hostile acquisitions by the Borrower or any Qualified Acquisition Subsidiary of assets or Capital Stock (other than Margin Stock) of any other person (such assets, in the case of an asset acquisition, or person, in the case of the acquisition of Capital Stock, is referred to herein as the "ACQUIRED ENTITY") so long as (i) in the case of an acquisition of assets, such assets are to be used, and in the case of an acquisition of Capital Stock, the person so acquired is engaged, in a business generally considered to be a part of the fluids management industry, (ii) the Borrower shall have provided the Lenders with the financial projections required by Section 5.04(g) and such other information as the Lenders shall reasonably request, (iii) on the date of such acquisition and immediately after giving effect thereto, the representations and warranties set forth in Article III shall be true and correct in all material respects with the same effect as though made on and as of such date and no Default or Event of Default shall exist, (iv) the Consolidated Leverage Ratio shall not exceed 3.75 to 1.00 calculated on a pro forma basis, (v) the Consolidated Fixed Charge Coverage Ratio shall not be less than 2.00 to 1.00 calculated on a pro forma basis, (vi) in the case of an acquisition of Capital Stock of a person, then simultaneously with any such acquisition, the Administrative Agent for the benefit of the Secured Parties shall be granted (A) in the case of a person organized under the laws of the United States, any State thereof or the District of Columbia, a first priority security interest in all of such Capital Stock acquired by the Borrower or any Qualified Acquisition Subsidiary as part of such acquisition, and (B) in the case of a person organized under the laws of a jurisdiction other than the United States, any State thereof or the District of Columbia, that will be acquired directly by the Borrower or a Domestic Subsidiary, a first priority security interest in 65% of all of the Capital Stock of the person so acquired, and in all cases the Borrower shall, and shall cause any applicable Subsidiary to, execute any documents (including a Supplemental Agreement, Intercompany Note, financing statements and other Collateral Documents) and take all action (including filing financing statements and obtaining and providing consents, and legal opinions) that may be required under applicable law, or that the Agents may request, in order to grant, preserve, protect and perfect such security interest, (vii) in the case of an acquisition of Capital Stock of a person, the Borrower acquires directly or indirectly 100% of the Capital Stock of such person; PROVIDED, THAT, with respect to the Indian Affiliate, the Borrower may acquire less than all but at least a majority interest in the Indian Subsidiary for a total aggregate consideration not to exceed $15.0 million 10,000,000, and (viii) the aggregate Fair Market Value of consideration, whether payable upon consummation thereof or in an aggregate principal the form of earn-outs, non-competes or other deferred payment arrangements, for all such acquisitions made during any Fiscal Year, including cash, securities, other property and the assumption of Indebtedness (if permitted), shall not exceed the difference between (A) the greater of (x) $25,000,000 or (y) 20% of the Borrower's Consolidated Net Worth as of the end of the preceding Fiscal Year, and (B) the amount of any Indebtedness incurred as permitted pursuant to Section 6.01(j) that remains outstanding at the time of determination (any time outstanding acquisition satisfying each of the criteria set forth in the preceding clauses (calculated without regard i) through (viii) being referred to write-downs or write-offs thereof after the date madeherein as a "PERMITTED ACQUISITION");
(3h) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred loans and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) advances made since after the Closing Date by (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in valuei) by the Borrower and the Guarantors in Restricted any Foreign Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries or any Wholly Owned Subsidiary that is a Domestic Subsidiary that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors permitted pursuant to Section 6.04(31), may not exceed the greater of (i6.01(e) $25.0 million and (ii) 0.50% of Consolidated Total Assets as any Wholly Owned Foreign Subsidiary to another Wholly Owned Foreign Subsidiary that are permitted pursuant to Section 6.01(k);
(i) loans to any Affiliate of the date any Borrower or its Subsidiaries; PROVIDED, THAT, (i) such Investment is made, plus loans do not exceed an aggregate amount equal to $1,000,000 at any returns one time outstanding, and (ii) all such loans are evidenced by Intercompany Notes pledged to the Agents and the Lenders pursuant to the Pledge Agreement; and
(j) a contribution of capital assets to the Borrower or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed Wholly Owned Subsidiary that is a Domestic Subsidiary to the amount of such Investment (as determined above) at the time such Investment was madeextent permitted by Section 6.05(g);.
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interestscapital stock, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations ofto, or make or permit to exist any investment in, any other Person (all of the foregoing, “Investments”), except for (i) Permitted Investments; (ii) Intercompany Indebtedness owing from a Borrower to another Borrower incurred in the ordinary course of business consistent with past practice; (iii) existing Intercompany Indebtedness listed on Schedule 6.3 (which describes all Intercompany Loans from the Borrowers to the Foreign Subsidiaries as of the date hereof); (iv) additional Intercompany Loans from one or more of the Borrowers to one or more Non-Debtor Foreign Subsidiaries in an aggregate amount not to exceed the difference between $300,000,000 (subject to reduction pursuant to Section 2.13) and the from time to time aggregate available commitments and aggregate principal balance outstanding under third party financing arrangements provided to the Non-Debtor Foreign Subsidiaries (including, without limitation, receivables securitizations and other third party credit facilities); (v) additional Intercompany Loans from one or more of the Borrowers to one or more of the Non-Debtor Foreign Subsidiaries in an aggregate amount not to exceed at any time the aggregate amount of cash dividends paid to or loans (which have not been repaid) made to the Borrowers after the Filing Date; (vi) additional Intercompany Loans from one or more of the Borrowers to one or more of the U.K. Subsidiaries in an aggregate amount not to exceed $25,000,000; (vii) Intercompany Loans from one or more of the Foreign Subsidiaries to one or more of the Borrowers; (viii) (y) loans by the Borrowers to existing or potential customers from whom the Borrowers reasonably expect to obtain a material commercial benefit in a manner consistent with historical practices of the Borrowers and in an aggregate amount not to exceed $25,000,000 at any one time, and (z) equity investments made by the Borrowers in existing customers as set forth on Schedule 6.10(a); (ix) up to C$15,000,000 note payable to Federal-Mogul Tri-Way Ltd. in connection with the sale of the assets of Federal-Mogul Tri-Way Ltd.; (x) Intercompany Indebtedness owing from a Non-Debtor Foreign Subsidiary to another Non-Debtor Foreign Subsidiary incurred in the ordinary course of business consistent with past practice; (xi) capital contributions advanced from the Borrowers to Federal-Mogul, S.A. - France in an aggregate amount not to exceed $60,000,000 (the initial $20,000,000 of such contributions shall be made only substantially contemporaneously with the making of an Intercompany Loan in an aggregate amount equal to $20,000,000 to one or more of the Borrowers); (xii) the conversion to equity interests, in an aggregate amount not to exceed $70,200,000 of certain pre-petition Intercompany Loans listed on Schedule 6.3 made by the Parent to Federal-Mogul do Brazil, Federal-Mogul Automotive PTY LTD, Federal-Mogul Holding Deutschland GmbH and Co. KG and Federal-Mogul PTY LTD and made by FM Investments BV to Federal-Mogul of South Africa (Pty.) Ltd., to the extent, but solely to the extent required under applicable laws or regulations to maintain the legal solvency of each such entity in its respective jurisdiction of incorporation; (xiii) up to $460,000 note payable to Federal-Mogul Powertrain, Inc. in connection with the sale of the assets of the Federal-Mogul Powertrain, Inc. Jackson, Michigan camshaft business to Camshaft Machine Company; (xiv) up to $2,500,000 note payable to Federal-Mogul Powertrain, Inc. in connection with the sale of the assets of the Federal-Mogul Powertrain, Inc. camshaft business (other than Jackson, Michigan) to Asimco International, Inc.; (xv) additional investments in a joint venture between Federal Mogul Sealing Systems and Taiho, which joint venture shall be named “TFGG LLC” or such other name of which the Borrowers shall have given the Administrative Agent written notice, and other new joint ventures of the Borrowers and their Subsidiaries or any other interest in new wholly-owned Subsidiary (each, a “InvestmentNew Subsidiary”) of the Borrowers or their Subsidiaries formed after the Restatement Effectiveness Date (the creation of New Subsidiaries shall only be permitted if (a) no Event of Default shall have occurred and be continuing or would result therefrom; and (b) after such creation all of the representations and warranties contained herein shall be true and correct), provided, however, that such additional investments in joint ventures and New Subsidiaries shall not exceed $10,000,000 in the aggregate in any other Person, except the following calendar year; (collectively, “Permitted Investments”):
(1xvi) the Transactions (including payment as part of the purchase consideration received in connection with each Asset Sale permitted under the Merger this Agreement);
(2) loans and advances , one or more notes payable to officers, directors, employees or consultants of any Parent Entity, the a Borrower or any Restricted Subsidiary not to exceed $15.0 million as the seller of such assets, in an aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made);
(3) Investments in an amount not to exceed the Available Amount as 10% of the date total consideration for the assets sold in such Investments are madeAsset Sale; provided that no Event and (xvii) up to £260,000 note payable to Engineering Components Limited, an indirect wholly-owned subsidiary of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired T & N Limited, in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum sale of its interest in Pars Washer Manufacturing & Industrial Private Company Limited, an Iranian corporation. The Borrowers may neither (a) the aggregate fair market value of all such make any additional Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at in their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Foreign Subsidiaries that are not Guarantors; except as permitted hereunder nor (b) transfer any assets or the aggregate proceeds of any Loans to any jurisdiction outside of the United States of America except as permitted hereunder. Any principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed payments made by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received Borrowers in respect of any such Investments the Intercompany Loan from Federal-Mogul, S.A. - France made pursuant to clause (which such amount xi) above shall not exceed reduce, on a Dollar for Dollar basis, the amount of postpetition Intercompany Loans which may be made to the Non-Debtor Foreign Subsidiaries. Notwithstanding the foregoing sentence or the provisions of clause (iv) above, (x) neither the Borrowers nor any of their Subsidiaries may make, or with respect to Intercompany Loans made after the Filing Date, permit to exist, an Intercompany Loan to a Non-Debtor Foreign Subsidiary during such Investment time as such Non-Debtor Foreign Subsidiary shall not have borrowed all amounts available to such Non-Debtor Foreign Subsidiary pursuant to commitments under third party financing arrangements then provided to such Non-Debtor Foreign Subsidiary and (as determined abovey) at in no event shall the time such Investment was made);permitted amount of postpetition Intercompany Loans to the Non-Debtor Foreign Subsidiaries be less than $100,000,000.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guaranty Agreement (Federal Mogul Corp)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation merger or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation merger or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) the following 2006 Transactions;
(collectivelyi) Investments by Intermediate Holdings or any Subsidiary in the Equity Interests of any Subsidiary; (ii) intercompany loans from Intermediate Holdings or any Subsidiary to Intermediate Holdings or any Subsidiary; and (iii) Guarantees by any Loan Party of Indebtedness otherwise permitted hereunder of Intermediate Holdings or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) the net amount outstanding in respect of intercompany loans made after the Closing Date by Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) the aggregate outstanding amount of Guarantees of Indebtedness after the Closing Date by Loan Parties of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii) (other than Guarantees by Loan Parties of the obligations under Guaranteed Swap Agreements of Subsidiaries that are not Subsidiary Loan Parties), shall not exceed an aggregate amount equal to (x) the greater of (1) the Transactions $202.5 million and (including payment 2) 4.50% of Consolidated Total Assets as of the purchase consideration under end of the Merger Agreementfiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b)); plus (y) the portion, if any, of the Cumulative Credit on the date of such election that Intermediate Holdings elects to apply to this Section 6.04(b)(y); provided, further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of Intermediate Holdings or any of the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt of noncash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower Intermediate Holdings or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 25.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to Intermediate Holdings or such Subsidiary in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 to the 2006 Credit Agreement and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) (calculated without regard to write-downs or write-offs thereof after offs) is not increased at any time above the date madeamount of such Investments existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(3i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), (u) and (ee);
(j) other Investments by Intermediate Holdings or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4i) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 225.0 million and (ii) 0.505.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (j), other than amounts included in the Cumulative Credit) plus (ii) the portion, if any, of the Cumulative Credit on the date of such election that Intermediate Holdings elects to apply to this Section 6.04(j)(ii); provided that if any Investment pursuant to this clause (j) is made in any person that is not a Subsidiary at the date of the making of such Investment and such person becomes a Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (b) above to the extent then permitted under such clause (b) and shall cease to have been made pursuant to this clause (j) for so long as such person continues to be a Subsidiary;
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Subsidiaries that are not Loan Parties and Guarantees by Subsidiaries that are not Loan Parties permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by Intermediate Holdings or any Subsidiary as a result of a foreclosure by Intermediate Holdings or such Subsidiary, as applicable, with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary that is acquired after the Closing Date or of an entity merged into or consolidated with Intermediate Holdings or a Subsidiary after the Closing Date, in each case, (i) to the extent the acquisition of such Subsidiary or such merger or consolidation, as applicable, is permitted under this Section 6.04 and, in the case of any merger or consolidation, permitted under Section 6.05 and (ii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(o) acquisitions by any Loan Party of obligations of one or more officers or other employees of Intermediate Holdings, Holdings, any Parent Entity, such Loan Party or its subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by any Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by Intermediate Holdings or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by Intermediate Holdings or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of Holdings (or any Parent Entity);
(r) Investments in the equity interests of one or more newly formed persons that are received in consideration of the contribution by Intermediate Holdings, any Borrower or the applicable Subsidiary Loan Party of assets (including Equity Interests and cash) to such person or persons; provided, that (i) the fair market value of such assets, determined on an arms’-length basis, so contributed pursuant to this paragraph (r) shall not in the aggregate exceed $20.0 million and (ii) in respect of each such contribution, a Responsible Officer of Intermediate Holdings shall certify, in a form to be agreed upon by Intermediate Holdings and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing, (y) the fair market value of the assets so contributed and (z) that the requirements of paragraph (i) of this proviso remain satisfied;
(s) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) Investments in Subsidiaries that are not Loan Parties not to exceed the greater of $90.0 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment is made, for which financial statements have been delivered pursuant to Section 5.04 (plus an amount equal to any returns return of capital or sale proceeds actually received in respect of any such Investments theretofore made pursuant to this paragraph (u) (which such amount shall not exceed the amount of such Investment (as determined above) valued at cost at the time such Investment was made)), in the aggregate, as valued at the fair market value of such Investment at the time such Investment is made;
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the applicable Subsidiary;
(x) Investments by Intermediate Holdings or any of the Subsidiaries, including loans to any direct or indirect parent of Intermediate Holdings or such Subsidiary, if Intermediate Holdings, such Subsidiary or any other Subsidiary would otherwise be permitted to make a dividend or distribution in such amount (provided that the amount of any such investment shall also be deemed to be a distribution under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Investments arising as a result of Permitted Receivables Financings;
(z) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(aa) purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business, to the extent such purchases and acquisitions constitute Investments;
(bb) Investments received substantially contemporaneously in exchange for Equity Interests of Holdings or any Parent Entity; provided that such Investments are not included in any determination of the Cumulative Credit; and
(cc) Investments in joint ventures not in excess of 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04, in the aggregate; provided that if any Investment pursuant to this clause (cc) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (b) above to the extent then permitted under such clause (b) and shall cease to have been made pursuant to this clause (cc) for so long as such person continues to be a Subsidiary of the Borrower. The amount of Investments that may be made at any time pursuant to Section 6.04(b) or 6.04(j) (such Sections, the “Related Sections”) may, at the election of Intermediate Holdings, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section.
Appears in 1 contract
Samples: Amendment Agreement (Momentive Performance Materials Inc.)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions (including payment of the purchase consideration under the Merger Agreement)[Reserved];
(2i) Investments by the Borrower or any Subsidiary in the Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans from the Borrower or any Subsidiary to the Borrower or any Subsidiary; and (iii) Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Borrower or any Subsidiary; provided, that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to $20.0 million; provided, further, that (x) intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Subsidiaries and (y) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-overs or extensions of terms) and made in the ordinary course of business consistent with past practice shall not be included in calculating the limitation in this paragraph at any time;
(c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Borrower or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 10.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings solely to the extent that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements; 134 QDI – A&R Credit Agreement (2014)
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this paragraph (h) is not increased at any time above the amount of such Investment existing on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), (u) and (dd);
(j) other Investments by the Borrower or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof after thereof) not to exceed $40.0 million (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (j)); provided that if any Investment pursuant to this clause (j) is made in any person that is not a Subsidiary of the Borrower at the date madeof the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (b) above and shall cease to have been made pursuant to this clause (j) for so long as such person continues to be a Subsidiary of the Borrower;
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(m);
(3m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Borrower as a result of a foreclosure by the Borrower or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Original Closing Date or of an entity merged into, or consolidated or amalgamated with the Borrower or merged into or consolidated or amalgamated with a Subsidiary after the Original Closing Date, in each case, (i) to the extent permitted under this Section 6.04 and, (ii) in the case of any acquisition, merger or consolidation or amalgamation, in accordance with Section 6.05 and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation or amalgamation and were in existence on the date of such acquisition, merger or consolidation or amalgamation;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of Holdings, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings so long as no cash is actually advanced by the Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations; 135 QDI – A&R Credit Agreement (2014)
(p) Guarantees by the Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Borrower or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of Holdings;
(r) Investments in an amount not to exceed the Available Amount as equity interests of one or more newly formed persons that are received in consideration of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4) Permitted Acquisitions and pre-existing Investments held contribution by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among Holdings, the Borrower and or the Restricted Subsidiaries applicable Subsidiary of assets (including intercompany Indebtedness)Equity Interests and cash) to such person or persons; provided provided, that the sum of (ai) the aggregate fair market value of all such Investments assets, determined on an arm’s-length basis, shall not exceed an aggregate net amount equal to $15.0 million and (other than intercompany Indebtedness and Guarantees ii) in respect of Indebtedness) made since each such Investment, a Responsible Officer of the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases Borrower shall certify, in value) a form to be agreed upon by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; Administrative Agent (bx) after giving effect to such Investment, no Default or Event of Default shall have occurred and be continuing, (y) the aggregate principal amount fair market value of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; assets so contributed and (cz) that the aggregate principal amount requirements of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of paragraph (i) $25.0 million and of this proviso remain satisfied;
(iis) 0.50% of Consolidated Total Assets as Investments consisting of the date any such Investment is maderedemption, plus an amount equal to any returns of capital purchase, repurchase or sale proceeds actually received in respect retirement of any such Equity Interests permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(which such amount shall u) Investments in Foreign Subsidiaries not to exceed $20 million in the amount aggregate, as valued at the fair market value of such Investment (as determined above) at the time such Investment was is made;
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(x) Investments by Borrower and its Subsidiaries, including loans and advances to any direct or indirect parent of the Borrower, if the Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount (provided that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Permitted Program Affiliate Transactions constituting Investments;
(z) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons; 136 QDI – A&R Credit Agreement (2014) (aa) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business;
Appears in 1 contract
Investments, Loans and Advances. PurchaseThe Borrower will not, and will not cause or permit any of the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity InterestsCapital Stock, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans loans, extensions of credit or advances to or Guarantees of the obligations to, make guarantees in favor of, or make or permit to exist any investment other investment, capital contribution or any other interest in (each, a “Investment”)in, any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1i) equity investments existing on the Transactions Effective Date by the Borrower in the Subsidiaries and listed on Schedule 6.04, (including payment ii) contributions of equity made after the Effective Date to Wholly Owned Subsidiaries of the purchase consideration under Borrower that do not exceed $1,000,000 in the Merger Agreementaggregate during any Fiscal Year, as long as such contributions are not made for the purpose of funding an acquisition not otherwise permitted hereunder, and (iii) treasury stock held by the Borrower and its Subsidiaries on the Effective Date and listed on Schedule 6.04 or acquired by the Borrower or a Subsidiary as permitted pursuant to Section 6.06(a);
(2b) loans and advances to officers, directors, employees or consultants of any Parent Entity, made after the Effective Date by the Borrower or any Restricted Wholly Owned Subsidiary that is a Domestic Subsidiary to any Subsidiary or the Borrower; PROVIDED, THAT, any such loan or advance (i) is evidenced by an Intercompany Note pledged and delivered to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement (other than as excepted in clause (iii) of Section 6.01(c)), and (ii) is otherwise permitted pursuant to Section 6.01(c);
(c) trade accounts receivable (and related notes and instruments) arising in the ordinary course of business consistent with past practices;
(i) advances to employees for home-swing loans and moving and travel expenses in the ordinary course of business consistent with past practices, and guarantees by the Borrower in connection with home-swing loans of third parties to employees, that, in the aggregate, do not exceed $1,000,000 at any one time outstanding and (ii) loans to executive officers of the Borrower to assist in the payment of taxes resulting from an election made under Section 83(b) of the Code which shall not exceed $500,000 in the aggregate at any one time outstanding;
(e) Cash Equivalents;
(f) securities held by the Borrower or any of the Subsidiaries prior to the Effective Date and listed in Schedule 6.04;
(g) (i) the FCE Acquisition and (ii) one or more non-hostile acquisitions by the Borrower or any Qualified Acquisition Subsidiary of assets or Capital Stock (other than Margin Stock) of any other person (such assets, in the case of an asset acquisition, or person, in the case of the acquisition of Capital Stock, is referred to herein as the "ACQUIRED ENTITY") so long as (A) in the case of an acquisition of assets, such assets are to be used, and in the case of an acquisition of Capital Stock, the person so acquired is engaged, in a business generally considered to be a part of the fluids management industry, (B) the Borrower shall have provided the Lenders with the financial projections required by Section 5.04(g) and such other information as the Lenders shall reasonably request, (C) on the date of such acquisition and immediately after giving effect thereto, the representations and warranties set forth in Article III shall be true and correct in all material respects with the same effect as though made on and as of such date and no Default or Event of Default shall exist, (D) the Consolidated Leverage Ratio shall not exceed 3.75 to 1.00 calculated on a pro forma basis, (E) the Consolidated Fixed Charge Coverage Ratio shall not be less than 2.00 to 1.00 calculated on a pro forma basis, (F) in the case of an acquisition of Capital Stock of a person, then simultaneously with any such acquisition, the Administrative Agent for the benefit of the Secured Parties shall be granted (I) in the case of a person organized under the laws of the United States, any State thereof or the District of Columbia, a first priority security interest in all of such Capital Stock acquired by the Borrower or any Qualified Acquisition Subsidiary as part of such acquisition, and (II) in the case of a person organized under the laws of a jurisdiction other than the United States, any State thereof or the District of Columbia, that will be acquired directly by the Borrower or a Domestic Subsidiary, a first priority security interest in 65% of all of the Capital Stock of the person so acquired, and in all cases the Borrower shall, and shall cause any applicable Subsidiary to, execute any documents (including a Supplemental Agreement, Intercompany Note, financing statements and other Collateral Documents) and take all action (including filing financing statements and obtaining and providing consents, and legal opinions) that may be required under applicable law, or that the Agents may request, in order to grant, preserve, protect and perfect such security interest, (G) in the case of an acquisition of Capital Stock of a person, the Borrower acquires directly or indirectly 100% of the Capital Stock of such person; PROVIDED, THAT, with respect to the Indian Affiliate, the Borrower may acquire less than all but at least a majority interest in the Indian Subsidiary for a total aggregate consideration not to exceed $15.0 million 10,000,000, and (H) except with respect to the FCE Acquisition, the aggregate Fair Market Value of consideration, whether payable upon consummation thereof or in an aggregate principal amount at the form of earn-outs, non-competes or other deferred payment arrangements, for all such acquisitions made during any time outstanding Fiscal Year, including cash, securities, other property and the assumption of Indebtedness (calculated without regard to write-downs or write-offs thereof after the date madeif permitted);
(3) Investments in an amount , shall not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
difference between (4I) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (ix) $25.0 million and 25,000,000 or (iiy) 0.5020% of the Borrower's Consolidated Total Assets Net Worth as of the date any such Investment is madeend of the preceding Fiscal Year, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments and (which such amount shall not exceed II) the amount of such Investment (any Indebtedness incurred as determined abovepermitted pursuant to Section 6.01(j) that remains outstanding at the time such Investment was made);of determination (any
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations ofto, or make or permit to exist any investment or any other interest in (eachall of the foregoing, a “InvestmentInvestments”), any other Person, except the following (collectively, “Permitted Investments”):except:
(1a) (i) Investments by the Borrower and the Subsidiaries existing on the date hereofClosing Date in (x) the Transactions (including payment Equity Interests of the purchase consideration under Subsidiaries and (y) Indebtedness owed to it by the Merger AgreementBorrower and the Subsidiaries and (ii) additional Investments by the Borrower and the Subsidiaries in the Equity Interests of the Loan Parties and the Broker Dealer Subsidiaries; provided that (A) any such Equity Interests or Indebtedness held by a Loan Party shall be pledged pursuant to the Guarantee and Collateral Agreement (other than the Equity Interests of the Registered Securities Exchange Subsidiaries and subject to the limitations applicable to voting stock of a Foreign Subsidiary referred to therein) and (B) the aggregate amount of Investments made after the Closing Date by Loan Parties in or to Broker Dealer Subsidiaries shall not exceed the sum of (x) the amount that is required at the time of such Investment to cause such Broker Dealer Subsidiary’s capital to be at or above the Minimum Capital Requirement, plus (y) $10,000,000 (increasing on and after the Acquisition Closing Date to $12,000,000) in any fiscal year;
(b) Investments in cash and Cash Equivalents;
(c) 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 in excess of $50,000,000 (increasing on and after the Acquisition Closing Date $60,000,000) made by a Loan Party to a Subsidiary that is not a Loan Party shall be evidenced by a promissory note pledged to the Collateral Agent for the ratable benefit of the Secured Parties, (ii) any such loans or advances made to a Loan Party by a Subsidiary that is not a Loan Party shall be unsecured and subordinated to the Obligations pursuant to an Affiliate Subordination Agreement and (iii) the amount of such loans and advances made by the Loan Parties to Subsidiaries that are not Loan Parties shall be subject to the limitations set forth in Section 6.04(o) and (p);
(2d) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts (including trade accounts and accounts receivable) and disputes with, customers and suppliers, in each case in the ordinary course of business and to the extent reasonably necessary in order to prevent or limit loss;
(e) the Borrower and the Subsidiaries may make loans and advances in the ordinary course of business to their respective directors, officers, directors, employees or and consultants of any Parent Entity, so long as the Borrower or any Restricted Subsidiary not to exceed $15.0 million in an aggregate principal amount thereof at any time outstanding (calculated determined without regard to any write-downs or write-offs thereof of such loans and advances) shall not exceed $1,500,000 (increasing on and after the date madeAcquisition Closing Date to $1,800,000) in the aggregate;
(f) the Borrower or any Subsidiary may acquire all or substantially all the assets of a Person or line of business of such Person, or not less than 100% of the Equity Interests (other than directors’ qualifying shares) of a Person (referred to herein as the “Acquired Entity”); provided that (i) such acquisition was not preceded by an unsolicited tender offer for such Equity Interests by, or proxy contest initiated by, the Borrower or any Subsidiary; (ii) the Acquired Entity shall be in a similar line of business as that of the Borrower and the Subsidiaries as conducted during the current and most recent calendar year; and (iii) at the time of such transaction (or, in the case of clauses (A) and (B), if such transaction is to be made pursuant to a definitive acquisition agreement, at the time that such acquisition agreement is executed and delivered), (A) both before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; (B) after giving pro forma effect thereto, the Borrower would be in compliance with the covenant set forth in Section 6.11 as of the most recently completed Test Period (assuming, for purposes of pro forma compliance with Section 6.11, that the maximum Leverage Ratio permitted at the time by such Section is 0.25 less than the ratio actually provided for in such Section at such time); (C) the consideration paid for the acquisition of Acquired Entities that, concurrently with the acquisition thereof, do not become Loan Parties (or, in the case of any asset acquisition (other than the acquisition of the Equity Interests of a Registered Securities Exchange Subsidiary), which assets do not constitute Collateral) shall not in the aggregate exceed $75,000,000 (increasing on and after the Acquisition Closing Date to $125,000,000); (D) the Borrower shall have delivered a certificate of a Financial Officer, certifying that such acquisition complies with all of the requirements set forth in this Section 6.04(f) and containing reasonably detailed calculations in support thereof, in form and substance satisfactory to the Administrative Agent; and (E) the Borrower shall comply, and shall cause the Acquired Entity to comply, with the applicable provisions of Section 5.10 and the Security Documents (any acquisition of an Acquired Entity meeting all the criteria of this Section 6.04(f) being referred to herein as a “Permitted Acquisition”);
(3g) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business;
(h) Investments made as a result of the receipt of non-cash consideration from a sale, transfer or other disposition of any asset in compliance with Section 6.05;
(i) Investments by the Borrower in Hedging Agreements permitted under Section 6.01(j);
(j) Investments in an amount not to exceed the Available Amount as ordinary course of the date such Investments are made; provided that no Event business consisting of Default has occurred Uniform Commercial Code Article 3 endorsements for collection or deposit and is continuing immediately prior to making such Investment or would result therefromUniform Commercial Code Article 4 customary trade arrangements with customers;
(4k) Permitted Acquisitions and pre-existing Investments held made by Persons acquired any Broker Dealer Subsidiary in Permitted Acquisitions or acquired in connection with Permitted Acquisitionsthe ordinary course of business;
(5l) intercompany Investments among made to effect the pledges and deposits described in and permitted under Section 6.02(f) or (g);
(m) any repurchase of the Borrower’s Equity Interests permitted under Section 6.06(a)(iii) and (iv);
(n) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses of the Borrower or any Subsidiary for accounting purposes and that are made in the Restricted Subsidiaries ordinary course of business;
(including intercompany Indebtedness)o) Investments in any Foreign Subsidiary; provided that the sum aggregate outstanding amount of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since after the Closing Date (with all determined without regard to any write-downs or write-offs of such Investments) shall not exceed $40,000,000; and (increasing on and after the Acquisition Closing Date to $65,000,000);
(p) in addition to Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in valuepermitted by paragraphs (a) through (o) above, additional Investments by the Borrower and the Guarantors Subsidiaries so long as the aggregate outstanding amount invested pursuant to this paragraph (p) (determined without regard to any write-downs or write-offs of such Investments) does not exceed $35,000,000 (increasing on and after the Acquisition Closing Date to $42,000,000) in Restricted Subsidiaries that are not Guarantorsthe aggregate.; and
(bq) the aggregate principal amount of Indebtedness owing to Borrower may consummate the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 million and (ii) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);Hotspot Acquisition.
Appears in 1 contract
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation merger with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) the following Transactions and Investments arising as a result of one or more Permitted Supplier Finance Facilities;
(collectivelyb) (i) Investments by the Company or any Subsidiary in the Equity Interests of the Company or any Subsidiary; (ii) intercompany loans from the Company or any Subsidiary to the Company or any Subsidiary; and (iii) Guarantees by the Company or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Company or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Closing Date to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Amendment No. 3 Effective Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate net amount equal to (x) the greater of (1) the Transactions $100 million and (including payment 2) 4.5% of Consolidated Total Assets as of the purchase consideration under end of the Merger Agreementfiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b)); plus (y) the portion, if any, of the Cumulative Credit on the date of such election that the Company elects to apply to this Section 6.04(b)(y), such election to be specified in a written notice of a Responsible Officer of the Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt by the Company or any Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower Company or any Restricted Subsidiary (i) in the ordinary course of business not to exceed the greater of $15.0 25 million and 1.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such loan or advance for which financial statements have been delivered pursuant to Section 5.04, in an the aggregate principal amount at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to the Company in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements;
(h) Investments existing on, or contractually committed as of, the Amendment No. 3 Effective Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) is not increased at any time above the amount of such Investment existing on the Amendment No. 3 Effective Date;
(i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), and (u);
(j) other Investments by the Company or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof after the date made);
(3thereof) Investments in an amount not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4i) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 225 million and (ii) 0.506.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date any of such Investment is made, incurrence for which financial statements have been delivered pursuant to Section 5.04 (plus an amount equal to any returns of capital or sale proceeds actually received by the respective investor in respect of any investments theretofore made by it pursuant to this paragraph (j)) plus (ii) the portion, if any, of the Cumulative Credit on the date of such Investments (which election that the Company elects to apply to this Section 6.04(j)(ii), such amount shall not exceed election to be specified in a written notice of a Responsible Officer of the Company calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied;
(k) Investments constituting Permitted Business Acquisitions and Investments constituting the Specified Stock Purchases;
(l) intercompany loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by the Company as a result of a foreclosure by the Company or any of the Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary acquired after the Closing Date or of an entity merged into the Company or merged into or consolidated with a Subsidiary after the Closing Date, in each case, to the extent permitted under this Section 6.04 and, in the case of any merger or consolidation, in accordance with Section 6.05 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(o) acquisitions by the Company of obligations of one or more officers or other employees of Holdings, any Parent Entity, the Company or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by the Company or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by the Company or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by the Company or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of Holdings (or any Parent Entity);
(r) Investments in the equity interests of one or more newly formed persons that are received in consideration of the contribution by Holdings, the Company or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided, that (i) the fair market value of such assets, determined on an arms’-length basis, so contributed pursuant to this paragraph (r) shall not in the aggregate exceed $30 million and (ii) in respect of each such contribution, a Responsible Officer of the Company shall certify, in a form to be agreed upon by the Company and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing, (y) the fair market value of the assets so contributed and (z) that the requirements of paragraph (i) of this proviso remain satisfied;
(s) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) Investments in Foreign Subsidiaries not to exceed the greater of $75 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment (for which financial statements have been delivered pursuant to Section 5.04, in the aggregate, as determined above) valued at the fair market value of such Investment at the time such Investment was is made;
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Company or such Subsidiary;
(x) Investments by the Company and its Subsidiaries, including loans to any direct or indirect parent of the Company, if such Borrower or any other Subsidiary would otherwise be permitted to make a dividend or distribution in such amount (provided that the amount of any such investment shall also be deemed to be a distribution under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Investments arising as a result of Permitted Receivables Financings;
(z) Investments received substantially contemporaneously in exchange for Equity Interests of any Parent Entity; provided that such Investments are not included in any determination of the Cumulative Credit; and
(aa) Investments in joint ventures not in excess of the greater of $75 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04, in the aggregate. The amount of Investments that may be made at any time pursuant to clause (C) of the proviso of Section 6.04(b) or 6.04(j) (such Sections, the “Related Sections”) may, at the election of the Company, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section.
Appears in 1 contract
Samples: Revolving Credit Agreement (Berry Plastics Group Inc)
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, consolidation merger or amalgamation with a Person person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation merger or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, a an “Investment”), any other Personperson, except except:
(a) the following Transactions;
(collectivelyi) Investments by Intermediate Holdings or any Subsidiary in the Equity Interests of any Subsidiary; (ii) intercompany loans from Intermediate Holdings or any Subsidiary to Intermediate Holdings or any Subsidiary; and (iii) Guarantees by any Loan Party of Indebtedness otherwise permitted hereunder of Intermediate Holdings or any Subsidiary; provided, “Permitted Investments”):
that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) the net amount outstanding in respect of intercompany loans made after the Closing Date by Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) the aggregate outstanding amount of Guarantees of Indebtedness after the Closing Date by Loan Parties of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii) (other than Guarantees by Loan Parties of the obligations under Guaranteed Swap Agreements of Subsidiaries that are not Subsidiary Loan Parties), shall not exceed an aggregate amount equal to (x) the greater of (1) the Transactions $202.5 million and (including payment 2) 4.50% of Consolidated Total Assets as of the purchase consideration under end of the Merger Agreementfiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04 (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b)); plus (y) the portion, if any, of the Cumulative Credit on the date of such election that Intermediate Holdings elects to apply to this Section 6.04(b)(y); provided, further, that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of Intermediate Holdings or any of the Subsidiaries shall not be included in calculating the limitation in this paragraph at any time;
(2c) Permitted Investments and Investments that were Permitted Investments when made;
(d) Investments arising out of the receipt of noncash consideration for the sale of assets permitted under Section 6.05;
(e) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower Intermediate Holdings or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 25.0 million in an the aggregate principal amount at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of Holdings (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to Intermediate Holdings or such Subsidiary in cash as common equity;
(f) accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(g) Swap Agreements;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (h) (calculated without regard to write-downs or write-offs thereof after offs) is not increased at any time above the date madeamount of such Investments existing or committed on the Closing Date (other than pursuant to an increase as required by the terms of any such Investment as in existence on the Closing Date);
(3i) Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), (u) and (ee);
(j) other Investments by Intermediate Holdings or any Subsidiary in an aggregate amount (valued at the time of the making thereof, and without giving effect to any write-downs or write-offs thereof) not to exceed the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4i) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases or decreases in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (c) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors at any time outstanding, together with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (i) $25.0 225.0 million and (ii) 0.505.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (j), other than amounts included in the Cumulative Credit) plus (ii) the portion, if any, of the Cumulative Credit on the date of such election that Intermediate Holdings elects to apply to this Section 6.04(j)(ii); provided that if any Investment pursuant to this clause (j) is made in any person that is not a Subsidiary at the date of the making of such Investment and such person becomes a Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (b) above to the extent then permitted under such clause (b) and shall cease to have been made pursuant to this clause (j) for so long as such person continues to be a Subsidiary;
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Subsidiaries that are not Loan Parties and Guarantees by Subsidiaries that are not Loan Parties permitted by Section 6.01(m);
(m) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by Intermediate Holdings or any Subsidiary as a result of a foreclosure by Intermediate Holdings or such Subsidiary, as applicable, with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(n) Investments of a Subsidiary that is acquired after the Closing Date or of an entity merged into or consolidated with Intermediate Holdings or a Subsidiary after the Closing Date, in each case, (i) to the extent the acquisition of such Subsidiary or such merger or consolidation, as applicable, is permitted under this Section 6.04 and, in the case of any merger or consolidation, permitted under Section 6.05 and (ii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(o) acquisitions by any Loan Party of obligations of one or more officers or other employees of Intermediate Holdings, Holdings, any Parent Entity, such Loan Party or its subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of Holdings or any Parent Entity, so long as no cash is actually advanced by any Borrower or any of the Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(p) Guarantees by Intermediate Holdings or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by Intermediate Holdings or any Subsidiary in the ordinary course of business;
(q) Investments to the extent that payment for such Investments is made with Equity Interests of Holdings (or any Parent Entity);
(r) Investments in the equity interests of one or more newly formed persons that are received in consideration of the contribution by Intermediate Holdings, any Borrower or the applicable Subsidiary Loan Party of assets (including Equity Interests and cash) to such person or persons; provided, that (i) the fair market value of such assets, determined on an arms’-length basis, so contributed pursuant to this paragraph (r) shall not in the aggregate exceed $20.0 million and (ii) in respect of each such contribution, a Responsible Officer of Intermediate Holdings shall certify, in a form to be agreed upon by Intermediate Holdings and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing, (y) the fair market value of the assets so contributed and (z) that the requirements of paragraph (i) of this proviso remain satisfied;
(s) Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06;
(t) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(u) Investments in Subsidiaries that are not Loan Parties not to exceed the greater of $90.0 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment is made, for which financial statements have been delivered pursuant to Section 5.04 (plus an amount equal to any returns return of capital or sale proceeds actually received in respect of any such Investments theretofore made pursuant to this paragraph (u) (which such amount shall not exceed the amount of such Investment (as determined above) valued at cost at the time such Investment was made)), in the aggregate, as valued at the fair market value of such Investment at the time such Investment is made;
(v) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(w) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the applicable Subsidiary;
(x) Investments by Intermediate Holdings or any of the Subsidiaries, including loans to any direct or indirect parent of Intermediate Holdings or such Subsidiary, if Intermediate Holdings, such Subsidiary or any other Subsidiary would otherwise be permitted to make a dividend or distribution in such amount (provided that the amount of any such investment shall also be deemed to be a distribution under the appropriate clause of Section 6.06 for all purposes of this Agreement);
(y) Investments arising as a result of Permitted Receivables Financings;
(z) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other persons;
(aa) purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business, to the extent such purchases and acquisitions constitute Investments;
(bb) Investments received substantially contemporaneously in exchange for Equity Interests of Holdings or any Parent Entity; provided that such Investments are not included in any determination of the Cumulative Credit; and
(cc) Investments in joint ventures not in excess of 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04, in the aggregate; provided that if any Investment pursuant to this clause (cc) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment and such person becomes a Subsidiary of the Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (b) above to the extent then permitted under such clause (b) and shall cease to have been made pursuant to this clause (cc) for so long as such person continues to be a Subsidiary of the Borrower. The amount of Investments that may be made at any time pursuant to Section 6.04(b) or 6.04(j) (such Sections, the “Related Sections”) may, at the election of Intermediate Holdings, be increased by the amount of Investments that could be made at such time under the other Related Section; provided that the amount of each such increase in respect of one Related Section shall be treated as having been used under the other Related Section.
Appears in 1 contract
