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 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 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 (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 (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 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 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 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 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) [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 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 (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 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 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 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 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 (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 (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. 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 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 (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 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 Paper Holdings LLC), Credit Agreement (Verso Sartell 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 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 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 Equity Partners LP), Credit Agreement (Crestwood Midstream Partners LP)
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 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 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 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 (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 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 (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 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 (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. 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 (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 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 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 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: the following Transactions and Investments arising as a result of one or more Permitted Supplier Finance Facilities;
(collectivelyi) 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 NYDOCS01/1270096.12 Xxxxx – A&R Revolving Credit Agreement 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 (including payment of the purchase consideration under the Merger Agreement);
$100 million and (2) 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 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. Permitted Investments and Investments that were Permitted Investments when made; 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; 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; 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; Swap Agreements; 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; Investments resulting from pledges and deposits under Sections 6.02(f), (g), (k), (r), (s), and (u); 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 NYDOCS01/1270096.12 Xxxxx – A&R Revolving Credit Agreement 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; Investments constituting Permitted Business Acquisitions and Investments constituting the Specified Stock Purchases; intercompany loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(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; 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; 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; 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; Investments to the extent that payment for such Investments is made with Equity Interests of Holdings (or any Parent Entity); 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; NYDOCS01/1270096.12 Xxxxx – A&R Revolving Credit Agreement Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06; 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; 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; Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);; 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; 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); Investments arising as a result of Permitted Receivables Financings; 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 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 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 (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”"), in any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1i) Investments by Holdings or any Subsidiary in the Transactions Equity Interests of any Subsidiary; (including payment ii) intercompany loans from the Borrower to any Subsidiary that is a Loan Party and intercompany loans permitted by Section 6.01(e); and (iii) Guarantees by the Borrower or any Loan Party of Indebtedness otherwise expressly permitted under this Agreement of the purchase consideration under Borrower or any Subsidiary; provided that the Merger Agreementsum of (A) Investments (valued at the time of the making thereof and without giving effect to any write-downs or write-offs thereof) after the Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Loan Parties, plus (B) intercompany loans 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 Domestic Subsidiary Loan Parties pursuant to clause (iii), shall not exceed an aggregate amount equal to $25.0 million (plus any return of capital actually received by the respective investors in respect of investments theretofore made by them pursuant to this paragraph (a));
(2b) Permitted Investments and investments that were Permitted Investments when made;
(c) Investments required in connection with Alpha Terminal Company, LLC's partnership interest in Dominion Terminal Associates, so long as the aggregate amount invested, loaned or advanced pursuant to this clause (c) does not exceed $10.0 million in any fiscal year, with any unused amount for any fiscal year being carried forward to the immediately succeeding fiscal year (it being understood and agreed that no such amount may be carried forward beyond the fiscal year immediately succeeding the fiscal year in which it arose);
(d) Investments in the Equity Interests of ANR, Inc. in connection with the purchase or redemption of Equity Interests held by then present or former directors, consultants, officers or employees of ANR, Inc., Holdings or any of the Subsidiaries or by any Plan upon such person's death, disability, retirement or termination of employment or under the terms of any such Plan (including the Alpha Natural Resources, Inc. Long-term Incentive Plan and the Alpha Coal Management, LLC Long-term Incentive Plan); provided that the aggregate amount of such purchases or redemptions under this paragraph (d) shall not exceed in any fiscal year $2.5 million (plus the amount of net proceeds (x) received by Holdings (as a contribution to equity) during such calendar year from sales of Equity Interests of ANR, Inc. to directors, consultants, officers or employees of Holdings or any Subsidiary in connection with permitted employee compensation and incentive arrangements, which, if not used in any year, may be carried forward to any subsequent calendar year and (y) of any key-man life insurance policies recorded during such calendar year);
(e) Investments arising out of the receipt by Holdings or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 6.05;
(f) (i) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower Holdings or any Restricted Subsidiary 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 after the date madethereof);
(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 1 contract
Investments, Loans and Advances. PurchaseMake any Investment, hold except that the following shall be permitted:
(a) the Companies may consummate the Transactions;
(b) Investments outstanding on the Amendment No. 4 Effective Date and identified on Schedule 6.04(b) and any modification, replacement, renewal, reinvestment or acquire (including pursuant to any merger, consolidation or amalgamation with a Person extension thereof; provided that the amount of the original Investment is not a Wholly Owned Subsidiary immediately prior increased except by the terms of such Investment to the extent 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 Agreementincrease is set forth on Schedule 6.04(b);
(2c) Borrower and any Restricted Subsidiary may (i) acquire, hold and Dispose of accounts receivable owing to any of them if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms, (ii) invest in, acquire and hold cash and Cash Equivalents, (iii) endorse negotiable instruments held for collection in the ordinary course of business or (iv) make lease, utility and other similar deposits in the ordinary course of business;
(d) Permitted Acquisitions;
(e) loans and advances to officers, current or former directors, employees or employees, officers and consultants of any Parent Entity, the Borrower Company (or any Restricted Subsidiary direct or indirect parent company thereof) (x) for reasonable and customary business-related travel, entertainment, relocation and similar ordinary business purposes (including travel and relocation), (y) for the purpose of purchasing Qualified Stock in Holdings (or any direct or indirect parent company thereof), so long as the proceeds of such purchase are promptly contributed to Borrower in cash and (z) for purposes not to exceed $15.0 million described in the foregoing clauses (x) and (y), in an aggregate principal amount at any time outstanding not to exceed the greater of (x) $37,500,000 and (y) 10% of Consolidated EBITDA (calculated without regard to write-downs or write-offs thereof after on a Pro Forma Basis) for the date made)most recently ended Test Period at the time of incurrence;
(3f) Investments in Borrower or any Restricted Subsidiary; provided that, Investments under this clause (f) in the form of Indebtedness owing by a Loan Party to a Non-Guarantor Subsidiary shall be subordinated to the Obligations pursuant to the terms of the Intercompany Subordination Agreement or other subordination terms reasonably acceptable to the Administrative Agent;
(g) Investments in securities of trade creditors or customers that are received (A) in settlement of bona fide disputes or delinquent obligations or (B) pursuant to any plan of reorganization or liquidation or similar arrangement upon the bankruptcy, insolvency or other restructuring of such trade creditors or customers;
(h) advances of payroll payments to employees of any Company in the ordinary course of business;
(i) Investments made by Borrower or any Restricted Subsidiary as a result of consideration received in connection with a Disposition made in compliance with Section 6.06;
(j) Investments consisting of Indebtedness, Liens, mergers, consolidations and other fundamental changes, Dispositions, Dividends and prepayments of Junior Indebtedness permitted (other than by reference to this Section 6.04(j)) under Sections 6.01, 6.02, 6.05, 6.06, 6.08 and 6.11 respectively;
(k) Investments of any Person that becomes a Restricted Subsidiary after the Amendment No. 4 Effective Date (including an Unrestricted Subsidiary that is designated a Restricted Subsidiary) or of any Person merged or consolidated with Borrower or any Restricted Subsidiary in accordance with this Section 6.04 after the Amendment No. 4 Effective Date; provided that (i) such Investments exist at the time such Person is acquired and (ii) such Investments are not made in anticipation or contemplation of such Person becoming a Restricted Subsidiary;
(l) any Investment in Cash Equivalents at the time such Investment is made;
(m) intercompany loans by Borrower or any Restricted Subsidiary to Holdings (or any direct or indirect parent thereof) for purposes and in amounts that would otherwise be permitted to be made as Dividends to Holdings (or any direct or indirect parent thereof) pursuant to Sections 6.08(c)-(q); provided that the principal amount of any such loans shall reduce Dollar-for-Dollar the amounts that would otherwise be permitted to be paid for such purpose in the form of Dividends pursuant to such Sections, as applicable;
(n) Investments to the extent that payment for such Investments is made with Equity Interests of Holdings (or any direct or indirect parent thereof); provided that such amounts used pursuant to this clause (n) shall not increase the Cumulative Equity Amount and does not constitute a Cure Amount;
(o) Investments to the extent arising solely from a subsequent increase in the value (excluding any value for which any additional consideration of any kind whatsoever has been paid or otherwise transferred, directly or indirectly, by, or on behalf of, Holdings, Borrower or any of its Restricted Subsidiaries) of an Investment otherwise permitted hereunder and made prior to such subsequent increase in value;
(p) any Investment in securities or other assets not constituting cash or Cash Equivalents and received in connection with a Disposition permitted under Section 6.06;
(q) Investments consisting of extensions of trade credit in the ordinary course of business;
(r) 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;
(s) reorganizations and other activities related to tax planning that do not have a materially adverse tax consequence on Borrower or its Restricted Subsidiaries; provided, that after giving effect to any such reorganizations and activities, there is no material adverse impact on the value of the (x) Collateral granted to the Collateral Agent for the benefit of the Secured Parties or (y) Guarantees in favor of the Lenders;
(t) to the extent constituting Investments, (i) purchases and other acquisitions of inventory, materials and equipment and intangible Property in the ordinary course of business, (ii) Capital Expenditures and (iii) leases or licenses of real or personal Property in the ordinary course of business so long as such leases or licenses do not, individually or in the aggregate, materially interfere with the ordinary conduct of the business of the Companies, taken as a whole;
(i) Investments in an aggregate amount at any time outstanding not to exceed the Available Cumulative Amount as of immediately prior to the date time any such Investments are Investment is made; provided that no Event of Default has occurred and is continuing at the time of such Investment and (ii) Investments in an aggregate amount at any time outstanding not to exceed the Cumulative Equity Amount immediately prior to making the time any such Investment or would result therefromis made;
(4v) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitionsunder any Hedging Agreement;
(5w) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the in an 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 not to exceed (i) the greater of (x) $200,000,000 and (cy) 50% of Consolidated EBITDA (calculated on a Pro Forma Basis) for the most recently ended Test Period at the time any such Investment is made plus (ii) the Available RP Capacity Amount plus (iii) the Available Prepayment Capacity Amount;
(x) Investments so long as (i) at the time of making such Investment, no Event of Default shall have occurred and be continuing and (ii) on a Pro Forma Basis, the Total Net Leverage Ratio for the most recently ended Test Period shall be no greater than 5.50 to 1.00;
(y) Investments in joint ventures in an 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 outstanding not Guarantors pursuant to Section 6.04(31), may not exceed the greater of (ix) $25.0 million 37,500,000 and (iiy) 0.5010% of Consolidated Total Assets as of EBITDA (calculated on a Pro Forma Basis) for the date most recently ended Test Period at the time any such Investment is made; and
(z) Investments made in connection with, plus an amount equal and necessary to any returns of capital or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed consummate, the amount of such Investment (as determined above) at the time such Investment was made);Post-Closing Reorganization.
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 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 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) the Loan-to-Value Ratio is equal to or less than [*] 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 any each such Investments contribution, a Responsible Officer of the Company shall certify, in a form to be agreed upon by the Company and the Administrative Agent (which x) after giving effect to such amount contribution, no Default or Event of 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 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 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 by the Transactions (including payment Borrower and its Restricted Subsidiaries existing on the Restatement Closing Date in the capital stock of the purchase consideration under Subsidiaries and other investments by the Merger Borrower and its Restricted Subsidiaries existing on the Restatement Closing Date and set forth in Schedule 6.04 to the Existing Credit Agreement);
(2b) 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)Permitted Investments;
(3c) Investments in an amount not to exceed [Intentionally Omitted]
(d) the Available Amount as of the date such Investments are madeBorrower may make any Permitted Acquisition; provided that no Event the Borrower complies, and causes any acquired entity to comply, with the applicable provisions of Default has occurred Section 5.11 and is continuing immediately prior the Security Documents with respect to making such Investment the person or would result therefromassets so acquired;
(4e) 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 (other than Inactive Subsidiaries) may make loans and advances to employees for moving, entertainment, travel and other similar expenses in the ordinary course of business not to exceed $5,000,000 in the aggregate at any time outstanding;
(f) Consolidated Capital Expenditures permitted pursuant to Section 6.10;
(g) cash collateral provided to the Collateral Agent pursuant to the Loan Documents;
(h) promissory notes issued by any purchaser in connection with any Asset Sale permitted pursuant to Section 6.05(b);
(i) provided that no Default or Event of Default shall have occurred and be continuing at the time of such payment or after giving effect thereto, (A) the purchase by the Borrower of shares of its common stock (for not more than fair market value) in connection with the delivery of such stock to grantees under any stock option plan (upon the exercise by such grantees of their stock options) or any other deferred compensation plan of the Borrower approved by the board of directors of the Borrower and (B) the repurchase of shares of, or options to purchase shares of, common stock of the Borrower or any of its Subsidiaries from employees, former employees, directors or former directors of the Borrower or any of its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors) pursuant to the terms of the agreements (including intercompany Indebtedness)employment agreements) or plans (or amendments thereto) approved by the board of directors of the Borrower under which such individuals purchase or sell or are granted the option to purchase or sell, such common stock; provided that the sum of (a) the aggregate fair market value amount of all such Investments purchases and repurchases permitted under this paragraph (other than intercompany Indebtedness and Guarantees of Indebtednessi) made since the Closing Date (with all such Investments being valued at their original fair market value and without taking into account subsequent increases shall not exceed $2,400,000 per year or decreases $16,800,000 in value) by the Borrower and the Guarantors in Restricted Subsidiaries that are not Guarantors; (b) the aggregate principal during the term of this Agreement;
(j) accounts receivable arising in the ordinary course of business from the sale of inventory;
(k) Guarantees constituting Indebtedness permitted by Section 6.01;
(l) investments in joint ventures in Related Businesses and investments in Unrestricted Subsidiaries in a combined aggregate amount of Indebtedness owing (without giving effect to the Borrower and the Guarantors by Restricted Subsidiaries that are any write down or write off thereof) not Guarantors exceeding $75,000,000 at any time outstanding;
(m) intercompany loans and advances constituting Indebtedness permitted by Section 6.01(e); and and
(cn) the other investments in an aggregate principal amount of Indebtedness of Restricted Subsidiaries that are (without giving effect to any write down or write off thereof) not Guarantors that is Guaranteed by the Borrower and the Guarantors exceeding $50,000,000 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: Amendment Agreement (Terex 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) intercompany loans and advances from the Transactions (including payment of the purchase consideration under the Merger Agreement)Borrower to Claire’s Stores constituting Permitted Foreign Cash Transfers;
(2i) Investments by the Borrower, Holdings or any Subsidiary in the Equity Interests of the Borrower, Holdings or any Subsidiary; (ii) intercompany loans from the Borrower, Holdings or any Subsidiary to the Borrower, Holdings or any Subsidiary; and (iii) Guarantees by the Borrower 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 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 $8 million (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this Section 6.04(b)) at any time outstanding; 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 among the Borrower 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 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 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 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% 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 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 such 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) [reserved];
(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 (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 aboverequired 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) 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) not to exceed $5 million (plus any returns of capital actually received by the respective investor in respect of Investments theretofore made by it pursuant to this Section 6.04(j)); provided that if any Investment pursuant to this Section 6.04(j) is made in any person that is not a Subsidiary of the Borrower at the date of the making of such Investment was made)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 Section 6.04(j) for so long as such person continues to be a Subsidiary of the Borrower; provided, that, any expenditures by the Borrower or any of its Subsidiaries in the form of key money or other expenditures in relation to new store openings in the ordinary course of business are not restricted hereunder;
Appears in 1 contract
Investments, Loans and Advances. PurchaseThe Borrower will not, and will not permit any Restricted Subsidiary to, purchase, hold or acquire any Investment in any other Person, except:
(including a) Investments (i) existing or contemplated on the Effective Date and set forth on Schedule 6.04, (ii) existing on the Effective Date of the Borrower or any Restricted Subsidiary in the Borrower or any other Restricted Subsidiary and (iii) in the case of each of clauses (i) and (ii), any modification, replacement, renewal, extension or reinvestment thereof, so long as the aggregate amount of all Investments pursuant to this Section 6.04(a) is not increased at any mergertime above the amount of such Investments existing or so contemplated on the Effective Date, consolidation except pursuant to the terms of such Investment existing or amalgamation with a Person contemplated as of the Effective Date as described on Schedule 6.04 and otherwise permitted by this Section 6.04;
(i) Investments by the Borrower or any Subsidiary Loan Party in the Borrower or any Subsidiary Loan Party; (ii) Investments by any Restricted Subsidiary 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 Loan Party in the obligations of, or make or permit to exist any investment Borrower or any other interest Restricted Subsidiary; and (iii) Investments by the Borrower or any Subsidiary Loan Party in any Restricted Subsidiary that is not a Subsidiary Loan Party; provided that the Investments made pursuant to this clause (eachiii) (valued at the time each such original Investment was made) shall be in an aggregate amount that would not exceed, a “after giving effect to the making of such Investment”), any other Personthe sum of, except the following (collectivelyat such time, “Permitted Investments”):
(1) the Transactions (including payment greater of $75,000,000 and 6.5% of Consolidated Total Assets of the purchase consideration under Borrower (measured as of the Merger Agreementdate such Investment is made based upon the Section 5.01 Financials most recently delivered on or prior to such date), (2) the Available Equity Amount at such time, (3) the Available Amount at such time and (4) to the extent not otherwise included in the determination of the Available Equity Amount or the Available Amount or included as a “recharge” pursuant to the definition of “Investment”, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received by the Borrower or any Subsidiary Loan Party in respect of any such Investment (which amount shall not exceed the original amount of such Investment (valued at the time such Investment was made)) (it being understood that to the extent any Investment made pursuant to this Section 6.04(b) was made by using the Available Equity Amount, then the amounts referred to in this clause (4) shall, to the extent of the original usage of the Available Equity Amount, be deemed to reconstitute such amounts);
(2c) Cash Equivalents and Investments that were Cash Equivalents when made;
(d) Investments arising out of the receipt by the Borrower or any Restricted Subsidiary of noncash consideration from Dispositions permitted under Section 6.05 or Section 6.06;
(e) (A) loans and advances to officers, directors, employees or employees, and consultants of any Parent Entity, the Borrower or any of its Restricted Subsidiary Subsidiaries (i) to finance the purchase of Equity Interests of the Borrower or any of its Restricted Subsidiaries; provided that the amount of such loans and advances used to acquire such Equity Interests shall be contributed to the Borrower in cash as common equity, (ii) for reasonable and customary business related travel expenses, entertainment expenses, moving expenses and similar expenses, in each case incurred in the ordinary course of business, and (iii) for additional purposes not contemplated by subclause (i) or (ii) above; provided that after giving effect to exceed $15.0 million in an the making of any such loan or advance, the aggregate principal amount at any time of all loans and advances outstanding under this Section 6.04(e)(iii) shall not exceed $10,000,000 (calculated without regard to write-downs or write-offs thereof after thereof),and (B) advances of payroll payments and expenses to employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the date madeordinary course of business;
(i) accounts receivable or notes receivable arising, and trade credit granted, in the ordinary course of business, (ii) any Investments 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;
(g) Swap Agreements permitted pursuant to Section 6.01(d);
(3h) Investments resulting from pledges and deposits referred to in an amount not to exceed Xxxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x), (xx), (dd), (ee), (hh) and (kk);
(i) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or contributions of Intellectual Property in each case in the Available Amount ordinary course of business;
(j) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, arising 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 date Restricted Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(k) Investments of a Restricted Subsidiary acquired after the Effective Date or of a Person merged into or consolidated with a Restricted Subsidiary in accordance with Section 6.05 after the Effective Date to the extent that (i) such acquisition, merger or consolidation is permitted under this Section 6.04, (ii) such Investments are madewere 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;
(l) Investments received substantially contemporaneously in exchange for, or the payment of which is made with, Equity Interests of the Borrower; provided that (i) no Event of Default has occurred and is continuing immediately prior to making such Investment or Change in Control would result therefrom, and (ii) such Equity Interests do not constitute Disqualified Equity Interests;
(4m) Guarantees by (i) the Borrower or any Subsidiary Loan Party 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 Loan Party in the ordinary course of business and (ii) any Subsidiary that is not a Subsidiary Loan Party of operating leases (other than Capitalized Lease Obligations) or of obligations that do not constitute Indebtedness, in each case, entered into by any Subsidiary that is not a Subsidiary Loan Party in the ordinary course of business;
(n) [reserved];
(o) Investments constituting Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Business Acquisitions;
(5p) intercompany any additional Investments among (including Investments in minority Investments, Investments in Unrestricted Subsidiaries, Investments in joint ventures or similar entities that do not constitute Restricted Subsidiaries, Investments constituting Permitted Business Acquisitions and Investments in Restricted Subsidiaries that are not, and do not become, Subsidiary Loan Parties); provided that the aggregate amount of such Investment shall not cause the aggregate amount of all such Investments made pursuant to this Section 6.04(p) measured at the time such Investment is made, to exceed, after giving effect to such Investment, the sum of, at such time, (i) an amount in any Fiscal Year not to exceed (A) $100,000,000, less (B) the aggregate amount of Restricted Payments made during such Fiscal Year in reliance on Section 6.07(d)(iii), less (C) the aggregate amount of prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings made during such Fiscal Year in reliance on Section 6.10(a)(i)(C)(z), (ii) the Available Equity Amount at such time, (iii) the Available Amount at such time and (iv) to the extent not otherwise included in the determination of the Available Amount or the Available Equity Amount or included as a “recharge” pursuant to the definition of “Investment”, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash by the Borrower or any Subsidiary Loan Party in respect of any such Investment (which amount shall not exceed the original amount of such Investment) (valued at the time of such original Investment) (it being understood that to the extent any Investment made pursuant to this Section 6.04(p) was made by using the Available Equity Amount, then the amounts referred to in this clause (iv) shall, to the extent of the original usage of the Available Equity Amount, be deemed to reconstitute such amounts);
(q) Investments in the ordinary course of business consisting of Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices and loans;
(r) Investments consisting of Indebtedness, fundamental changes, Dispositions, Restricted Payments and debt payments permitted under Sections 6.01, 6.05, 6.06, 6.07 and 6.10(a);
(s) the forgiveness or conversion to Qualified Equity Interests of any Indebtedness owed by the Borrower or any Restricted Subsidiary and permitted by Section 6.01;
(t) Restricted Subsidiaries of the Borrower may be established or created if the Borrower and such Restricted Subsidiary comply with the requirements of Section 5.11, if applicable; provided that, in each case, to the extent such new Restricted Subsidiary is created solely for the purpose of consummating a transaction pursuant to an acquisition permitted by this Section 6.04, and such new Restricted Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to it contemporaneously with the closing of such transactions, such new Restricted Subsidiary shall not be required to take the actions set forth in Section 5.11 until the respective acquisition is consummated (at which time the surviving entity of the respective transaction shall be required to so comply in accordance with the provisions thereof); and
(u) Investments by Loan Parties in any Restricted Subsidiary that is not a Loan Party so long as such Investment is part of a series of simultaneous Investments by the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness); provided that the sum of (a) the aggregate fair market value of all such Investments (in 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) result in 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 proceeds of the date any such intercompany Investment is made, plus an amount equal to any returns of capital being invested in one 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);more Loan Parties.
Appears in 1 contract
Samples: Credit Agreement (Weight Watchers International 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”), any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) the Transactions (including payment of including, among other things, investments made to effect the purchase consideration under the Merger AgreementRefinancing);
(i) 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 (x) the greater of (1) $91.0 million and (2) 20.0% of EBITDA as of the end of the most recently completed Test Period immediately prior to the date of such Investment (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)(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 plus (z) the aggregate amount of any dividends or distributions paid or made by Foreign Subsidiaries to a Loan Party after the Closing Date; provided, that, with respect to clause (y), (i) no Default or Event of Default has occurred and is continuing or would result therefrom after giving effect thereto and (ii) the Total Net Leverage Ratio would not exceed 4.00 to 1.00 calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period; 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 and intercompany liabilities incurred in connection with the Transaction 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 the greater of $15.0 23.0 million and 5.0% of EBITDA as of the end of the most recently completed Test Period immediately prior to the date of such loan or advance, 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;
(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), and (u);
(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 (i) the Available Amount greater of $155.0 million and 35.0% of EBITDA as of the end of the most recently completed Test Period (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 Investments are madeelection 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 provided, that, with respect to clause (ii), (x) no Default or Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefromtherefrom after giving effect thereto and (y) the Total Net Leverage Ratio would not exceed 4.00 to 1.00 calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period;
(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 the Borrower 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 Restricted date of such acquisition, merger or consolidation;
(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 Equity Interests of 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 Borrower or the 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 arms’-length basis, so contributed pursuant to this paragraph (other than intercompany Indebtedness r) shall not in the aggregate exceed $60.0 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 in Restricted Subsidiaries that are not Guarantors; Administrative Agent (bx) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing, (y) the aggregate principal 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 an amount of Indebtedness owing equal 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 sum of (i) the greater of $25.0 114.0 million and (ii) 0.5025.0% of Consolidated Total Assets EBITDA as of the end of the most recently completed Test Period immediately prior to the date any of such Investment, in the aggregate, as valued at the fair market value of such Investment at the time such Investment is made, plus an (ii) the amount equal to 25% of the aggregate principal amount of the Term Loans repaid utilizing cash (excluding cash financed with the proceeds of other debt) received by the Borrower as a dividend or distribution from Foreign Subsidiaries;
(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 returns direct or indirect parent of capital the Borrower, if the Borrower or sale proceeds actually received any other Subsidiary would otherwise be permitted to make a dividend or distribution in respect 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 or any Permitted Supplier Finance Facility;
(which z) Investments received substantially contemporaneously in exchange for Equity Interests of any Parent Entity; provided that such amount Investments are not included in any determination of the Cumulative Credit;
(aa) Investments in joint ventures not in excess of the greater of $137.0 million and 30.0% of EBITDA as of the end of the most recently completed Test Period immediately prior to the date of such Investment, in the aggregate; and
(bb) additional Investments by the Borrower and its Subsidiaries so long as (A) no Event of Default exists or would result therefrom and (B) the Total Net Leverage Ratio would not exceed 3.50 to 1.00 calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period. Notwithstanding anything to the contrary contained in this Agreement, (x) the Company shall not exceed be permitted to designate any Subsidiary that holds any Material Assets as an Unrestricted Subsidiary and (y) neither the amount Company nor any Subsidiary shall be permitted to contribute, sell, transfer or otherwise dispose of such Investment (as determined above) at the time such Investment was made);any Material Assets to an Unrestricted Subsidiary.
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: the following Transactions and Investments arising as a result of one or more Permitted Supplier Finance Facilities;
(collectivelyi) 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, “Permitted Investments”):
the Canadian Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of the Company 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 Amendment and Restatement Effective Date by (1) the Transactions Loan Parties pursuant to clause (including payment of the purchase consideration under the Merger Agreement);
i) above in Subsidiaries that are not Loan Parties and (2) the U.S. Loan Parties pursuant to clause (i) in Canadian Loan Parties, plus (B) net intercompany loans made after the Amendment and Restatement Effective Date (1) to Subsidiaries that are not Loan Parties pursuant to clause (ii) above and (2) by U.S. Loan Parties to Canadian Loan Parties pursuant to clause (ii) above, plus (C) Guarantees of Indebtedness (1) of Subsidiaries that are not Loan Parties pursuant to clause (iii) and (2) by U.S. Loan Parties of Indebtedness of Canadian Loan Parties, shall not exceed an aggregate net amount equal to (x) the greater of (1) $100 million and (2) 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 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 and intercompany liabilities incurred in connection with the RPC Acquisition shall not be included in calculating the limitation in this paragraph at any time; Permitted Investments and Investments that were Permitted Investments when made; 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; 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; 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; Swap Agreements; Investments existing on, or contractually committed as of, the Amendment and 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 Amendment and Restatement Effective Date; Investments resulting from pledges and deposits under Sections 6.02(f);
, (3) g), (k), (r), (s), and (u); 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; Investments constituting Permitted Business Acquisitions; intercompany loans between Foreign Subsidiaries and Guarantees by Foreign Subsidiaries permitted by Section 6.01(m) (in each case, from and after the Canadian Effective Date, other than Canadian Subsidiaries); 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; Investments of a Subsidiary acquired after the Amendment and Restatement Effective Date or of an entity merged into the Company or merged or amalgamated into or consolidated with a Subsidiary after the Amendment and Restatement Effective Date, in each case, to the extent permitted under this Section 6.04 and, in the case of any merger, amalgamation 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, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation; 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; 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; Investments to the extent that payment for such Investments is made with Equity Interests of Holdings (or any Parent Entity); 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 arm’s-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; Investments consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 6.06; 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; 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; Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);; 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; 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); Investments arising as a result of Permitted Receivables Financings; 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; 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; and the Transaction Equity Investment and the RPC Acquisition (including Investments in connection therewith by the Company or any Subsidiary in the Company or any Subsidiary made for tax planning and reorganization purposes, so long as the value of the Collateral after giving effect to such Investments, taken as a whole, is not materially impaired (as reasonably determined by the Company, which determination shall be conclusive). 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 Global Group Inc)
Investments, Loans and Advances. Purchase(a) The Borrower and the Parent 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) the Transactions (including payment investments existing as of the purchase consideration under Restructure Effective Date, to the Merger Agreementextent set forth on Schedule 6.04(a)(i), by the Borrower in Wholly Owned Subsidiaries;
(2ii) loans and advances to officers, directors, employees or consultants of any Parent Entity, made after the Restructure 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)Restructure 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 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 Subsidiaries the ordinary course of business consistent with past practices, provided that are not Guarantorsany such notes shall be pledged to the Agent on behalf of the Secured Parties pursuant to the Security Agreement; and
(vii) advances to employees for moving and travel expenses in the ordinary course of business consistent with past practices; and
(b) the aggregate principal amount of Indebtedness owing to Except as herein expressly permitted or contemplated, the Borrower and the Guarantors by Restricted Subsidiaries that are Parent shall not Guarantors at issue, sell, transfer, lease or otherwise dispose of any time outstanding; and (c) of its Capital Stock to, or accept any capital contribution from, any person, other than, in the aggregate principal amount case of Indebtedness the Borrower, the Parent or permit to exist any rights, warrants or options exercisable for, or any securities exchangeable for or convertible into, any shares of Restricted Subsidiaries that are not Guarantors that is Guaranteed by common stock of the Borrower or the Parent, except in the case of the Parent, those described on Schedule 6.04(b); provided, the Parent may issue the Lender Preferred Stock and the Guarantors at any time outstanding, together with any Investments made Centre New Preferred and may issue Preferred Stock to pay its dividend in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not exceed kind on the greater of (i) $25.0 million Lender Preferred Stock 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);Centre New Preferred.
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 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, if the Total Leverage Ratio exceeds 6.00:1.00, no further Investments by the Borrower or any Subsidiary Loan Party pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, 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 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 be permitted to the extent that the aggregate amount of Investments made after the Closing Date, and outstanding at such time, by the Borrower or any Subsidiary Loan Party pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, intercompany loans made after the Closing Date, and outstanding at such time, by the Borrower or any Subsidiary Loan Party to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii) and Guarantees after the Closing Date, and outstanding at such time, by the Borrower or any Subsidiary Loan Party of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii) would exceed the greater of (X) $75 million and (Y) at the time of any incurrence under this clause (b), 7.5% of the 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;
(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(g));
(2e) loans and advances to officers, directors, employees or consultants of any Parent EntityHoldings, the Borrower or any Restricted Subsidiary (i) in the ordinary course of business not to exceed $15.0 15 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, the Borrower or any Parent 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), and (s);
(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 (X) $125 million and (Y) at the time of any Investment pursuant to this paragraph (j), 125% of the EBITDA on a Pro Forma Basis for the Test Period most recently ended (plus any returns 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 Loan Party 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 Loan Party;
(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 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 madeof such acquisition, merger, consolidation or amalgamation;
(n) acquisitions by the Borrower of obligations of one or more officers or other employees of any Parent, Holdings, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of any Parent or 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;
(o) 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;
(p) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of any Parent;
(q) Investments acquired as result of capital contributions by a Parent of the Borrower;
(r) Investments consisting of Restricted Payments permitted by 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;
(t) non-cash contributions of services to joint ventures and Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment or licensing or contribution of Intellectual Property pursuant to joint marketing, joint development or similar arrangements with other Persons;
(u) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(3v) Investments advances in an amount not to exceed the Available Amount form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the date Borrower or such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefromSubsidiary;
(4w) 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 its Subsidiaries, including loans and advances to any direct or indirect parent of Holdings, the Guarantors 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 Subsidiaries Payment under the appropriate paragraph of Section 6.06 for all purposes of this Agreement);
(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 Qualified Equity Interests of Holdings, the Borrower or any Parent Entity; provided that such Investments are not Guarantorsincluded in any determination of the Cumulative Credit;
(aa) Investments in joint ventures; provided that, if the Total Leverage Ratio exceeds 6.00:1.00, no further Investments in joint ventures pursuant to this clause (baa) shall be permitted to the extent that 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 in joint ventures made in Restricted Subsidiaries that are not Guarantors pursuant to Section 6.04(31), may not this clause (aa) outstanding at that time would exceed (1) the greater of (iX) $25.0 75 million and (iiY) 0.50at the time of any incurrence under this clause (aa), 7.5% of the 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;
(bb) any Investment (i) deemed to exist as a result of a Subsidiary that is not a Loan Party distributing a note or other intercompany debt to a parent of such Investment Subsidiary that is madea Loan Party (to the extent there is no cash consideration or services rendered for such note), plus and (ii) consisting of intercompany current liabilities in connection with the cash management, tax and accounting operations of Holdings, the Borrower and the Subsidiaries;
(cc) Investments in a Similar Business in an aggregate amount equal (valued at the time of the making thereof, and without giving effect to any returns write downs or write offs thereof) not to exceed (A) the sum of capital or sale proceeds actually received in respect the greater of any such Investments (which such amount shall not exceed the amount of such Investment X) $75 million and (as determined aboveY) at the time of any Investment pursuant to this paragraph (cc), 7.5% of the Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Investment was madefor which financial statements have been delivered pursuant to Section 5.04 (plus any returns actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (cc);), plus (B) the portion, if any, of the Cumulative Credit on the date of such election that the Borrower elects to apply to this paragraph 6.04(cc); provided that if any Investment pursuant to this paragraph (cc) is made in any person that is not a Subsidiary of Holdings at the date of the making of such Investment and such person becomes a Subsidiary Loan Party 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 Loan Party; and
(dd) other Investments up to $40,000,000 in the aggregate in a Similar Business to finance the construction or renovation of a project or facility within 12 months of the Closing Date. 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.
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 as a result of the purchase consideration under the Merger Agreementcancellation or vesting of outstanding options and other equity-based awards in connection therewith);
(i) Investments by the Borrower or any Subsidiary in the Equity Interests of 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) 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 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 in connection with the Arbitrage Programs);
(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 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) to the extent permitted under this Section 6.04 and, (ii) in the case of any acquisition, merger, consolidation or amalgamation, permitted under 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 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) Investments in connection with the defeasance or discharge of the Existing Senior Notes;
(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.
Appears in 1 contract
Samples: Credit Agreement (NRT Settlement Services of Missouri LLC)
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 Xxxxx or a direct subsidiary thereof.
Appears in 1 contract
Samples: Credit Agreement (Celanese CORP)
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.$100.0 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, any of its Restricted Subsidiaries or any of the Maurepas Entities of noncash 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 or any of its Restricted Subsidiary Subsidiaries 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) 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.$25.0 million (plus any returns of capital actually received by the respective investor in respect of investments theretofore made by it pursuant to this paragraph (i));
(4j) Investments by the Borrower or any Restricted Subsidiary 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
Samples: Credit Agreement (SemGroup Corp)
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 (each, a “Investment”)in, any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) investments (i) existing on the Transactions (including payment Effective Date in the capital stock of the purchase consideration under Subsidiaries; (ii) by UCAR in the Merger Agreementcapital stock of the Borrower; (iii) by the Borrower or any Subsidiary in any Wholly Owned Subsidiary that is a Guarantor (so long as such Guarantor shall remain a Wholly Owned Subsidiary after giving effect to such investment); (iv) by any Wholly Owned Subsidiary in any Wholly Owned Subsidiary that is a Guarantor; (v) by any Subsidiary that is not a Guarantor in any Wholly Owned Subsidiary that is not a Guarantor (so long as such Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such investment); or (vi) that constitute Permitted Foreign Transfers (subject in the case of Specified Permitted Transactions to the limitations set forth in paragraph (k) below);
(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 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 $1,000,000) is pledged upon receipt pursuant to the Pledge Agreements to the extent required thereby;
(d) intercompany loans permitted to be incurred as Indebtedness under Section 6.01;
(e) (i) loans and advances to officers, directors, employees or consultants of any Parent EntityUCAR, the Borrower or any Restricted Subsidiary the Subsidiaries not to exceed $15.0 million 6,000,000 in an the aggregate principal amount at any time outstanding (calculated without regard excluding up to write-downs $3,000,000 in loans existing on the Effective Date to former employees) 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 write-offs 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 consistent with the past practices of UCAR, the Borrower and the Subsidiaries;
(g) Interest/Exchange Rate Protection Agreements permitted pursuant to Section 6.01(d);
(3h) Investments investments, other than investments listed in an amount not to exceed paragraphs (a) through (g) of this Section, existing on the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred Effective Date and is continuing immediately prior to making such Investment or would result therefromset forth on Schedule 6.04;
(4i) Permitted Acquisitions investments resulting from pledges and pre-existing Investments held by Persons acquired deposits referred to in Permitted Acquisitions Section 6.02(g) or acquired in connection with Permitted Acquisitions(h);
(5j) intercompany Investments among investments constituting Permitted Business Acquisitions made either as Capital Expenditures pursuant to Section 6.10 or, to the Borrower and extent not used for other purposes permitted hereunder, made with funds that if not so spent would constitute Net Proceeds under clause (a) of the Restricted Subsidiaries definition of "Net Proceeds" (including intercompany Indebtednesssubject to the limitation set forth in the second proviso to such clause (a));
(k) investments constituting Permitted Other Acquisitions or Specified Permitted Transactions; provided PROVIDED that the sum of (ai) 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 Specified Permitted Transactions and (ii) 0.50% the aggregate amount of Consolidated Total Assets consideration (whether cash or property, as of valued at the date any time each such Investment 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 ) for all Permitted Other Acquisitions acquired after the Effective Date shall not exceed (net of any return representing return of capital of (but not return on) any such investment) at any time (A) the amount set forth on Schedule A for the Leverage Ratio that is in effect at such time (it being agreed that any such investment permitted when made shall not cease to be permitted as a result of the applicable Leverage Ratio subsequently changing) PLUS, (B) to the extent not used for other purposes permitted hereunder, the funds that if not so spent would constitute Net Proceeds under clause (a) of the definition of "Net Proceeds" (subject to the limitation set forth in the second proviso to such clause (a));
(l) investments in Permitted Business Acquisitions and Unrestricted Subsidiaries to the extent made with proceeds of the issuance of Capital Stock of UCAR (to the extent not previously used to prepay Indebtedness (other than Revolving Loans or Swingline Loans), make any investment or capital expenditure or otherwise for any purpose resulting in a deduction to Excess Cash Flow in any fiscal year) issued after the Original Closing Date (after application of the Net Proceeds of such Investment issuance to prepay Obligations in accordance with Section 2.12(d) and the Tranche C Facility Credit Agreement); and
(m) investments by the Borrower or any Subsidiary in any Subsidiary resulting from or in connection with the formation of a European holding company and any related reorganization or restructuring of the Subsidiaries that occurs in connection therewith; PROVIDED that, after giving effect to any such formation, reorganization or restructuring (COLLECTIVELY, THE "EUROPEAN HOLDING COMPANY STRATEGY"), the Collateral Requirement and Guarantee Requirement shall be satisfied in a manner reasonably satisfactory to the Administrative Agent. PROVIDED, HOWEVER, that the aggregate amount of the consideration (whether cash or property, as determined above) valued at the time each such Investment was investment is made);) for all investments made in Unrestricted Subsidiaries (other than investments made therein pursuant to paragraph (l) above) after the Effective Date shall not exceed (net of return of capital of (but not return on) any such investment) $50,000,000 at any time, PROVIDED FURTHER, HOWEVER, that no more than $25,000,000 of such amount at any time may be invested in Unrestricted Subsidiaries not engaged primarily in Related Businesses.
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 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: Incremental Assumption 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 “Investmentan “ 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 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 AgreementAcquisition);
(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 $17.5 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 $12.5 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 $17.5 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 $17.5 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 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 (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 Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) Guarantees by the Transactions Borrowers or any Subsidiary of operating leases (including payment 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 purchase consideration under the Merger Agreement)ordinary course of business;
(2i) Investments (other than intercompany loans and advances to officers, directors, employees or consultants of any Parent Entity, Guarantees) by the Borrower Company or any Restricted Subsidiary not of the Company or any Subsidiary; (ii) intercompany loans from the Company or any Subsidiary to exceed $15.0 million in an aggregate principal amount the Company or any Subsidiary; and (iii) Guarantees by the Company or any Subsidiary of obligations otherwise expressly permitted hereunder of the Company or any Subsidiary; provided that (I) the sum of (A) Investments (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 thereof) after the Original Closing Date by the Loan Parties pursuant to clause (i) in Subsidiaries (other than Luxco while it was the Term Borrower under the Original Credit Agreement) that are not Domestic Subsidiary Loan Parties, plus (B) intercompany loans after the Original Closing Date to Subsidiaries (other than Luxco while it was the Term Borrower under the Original Credit Agreement) that are not Domestic Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the Original Closing Date of Subsidiaries (other than Luxco while it was the Term Borrower under the Original Credit Agreement) that are not Domestic Subsidiary Loan Parties pursuant to clause (iii) (other than, in each case, to the extent such Investments, Loans or Guarantees are made (1) by any subsidiary of the Company that is not a Loan Party (and excluding Bidco in all events from the term Loan Party for purposes of this proviso) or (2) by a Foreign Subsidiary Loan Party in or to another Foreign Subsidiary Loan Party) shall not exceed an aggregate amount equal to $190.0 million (plus any return of capital actually received by the respective investors in respect of investments theretofore made by them pursuant to above clause b(i)), plus (y) the portion, if any, of the Available Investment Basket Amount on the date madeof such election that Holdings elects to apply to this Section 6.04(b)) and (II) no Guarantees (other than by one or more Subsidiaries organized under the laws of the People’s Republic of China) may be given under this clause (b) in respect of Indebtedness permitted under Section 6.01(x), it being agreed that each existing Domestic Loan Party may, if Bidco is designated as the DD Borrower, transfer (by contribution or dividend) all of its LTIBRs to a company newly created or theretofor existing that is (or upon formation will be) a Domestic Subsidiary and that will own no, or substantially no, assets other than such LTIBRs transferred to it (such company, “LTIBR Co.”);
(3c) Permitted Investments in an amount not to exceed the Available Amount as of the date such and investments that were Permitted Investments are when made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment or would result therefrom;
(4d) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired received in connection with Permitted Acquisitionsthe 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;
(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 1 contract
Samples: Credit Agreement (Celanese CORP)
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) theInvestments made in order to consummate or complete the Recapitalization 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 25.05.0 million in an aggregate principal amount at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made); provided that loans and advances to consultants in the form of upfront payments made in connection with employment or consulting arrangements entered into in the ordinary course of business shall not be subject to such $5.0 million cap;
(3) Investments in an amount not to exceed the made with 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 therefromContribution Proceeds;
(4) Permitted Acquisitions and pre-existing Investments held by Persons acquired in Permitted Acquisitions or acquired in connection with Permitted Acquisitions;
(53) intercompany Investments among the Borrower and the Restricted Subsidiaries (including intercompany Indebtedness) (i) among the Borrower and the Subsidiary Loan Parties (other than Notes PropCo or 2019 Extended Term Loan PropCo; provided, that any Loan Party (other than Notes PropCo and 2019 Extended Term Loan PropCo) shall be permitted to fund, solely in the form of cash equity Investments, lease and other operating payments that are due in the ordinary course of business, or to maintain the legal existence, of Notes PropCo or the 2019 Extended Term Loan PropCo, as applicable), and (ii) among the Loan Parties (other than Notes PropCo and 2019 Extended Term Loan PropCo) and Restricted Subsidiaries that are not Guarantors; provided that (a) the sum of (aa1) the aggregate fair market value of all such Investments under subclause (ii) (other than intercompany Indebtedness and Guarantees of Indebtedness) made since the Closing ClosingFourth Amendment Effective 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 GuarantorsLoan Parties in Restricted Subsidiaries that are not Guarantors; (bb2) the aggregate principal amount of Indebtedness owing to the Borrower and the Guarantors GuarantorsLoan Parties by Restricted Subsidiaries that are not Guarantors at any time outstanding; and (cc3) the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower and the Guarantors Guarantors, may not exceed $25.0 million 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 date; and (b) 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)made);consisting of an intercompany loan by the Borrower or the Guarantors in Restricted Subsidiaries that are not Guarantors shall be pledged as Collateral to secure the Obligations, subject to carve outs for Excluded Assets; provided, further that Investments by the Borrower or its Restricted Subsidiaries in Subsidiaries that are not Wholly Owned Subsidiaries shall be on arm’s-length terms;
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 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 Borrowers (other than the UK Borrower (unless it becomes a borrower under an Incremental European Revolving Facility)) 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 Amendment and Restatement Effective Date by (1) the Transactions Loan Parties (including payment other than the UK Borrower (unless it becomes a borrower under an Incremental European Revolving Facility)) pursuant to clause (i) above in the UK Borrower (unless it becomes a borrower under an Incremental European Revolving Facility) or Subsidiaries that are not Loan Parties and (2) the U.S. Loan Parties pursuant to clause (i) in other Loan Parties (other than U.S. Loan Parties), plus (B) net intercompany loans made after the Amendment and Restatement Effective Date (1) to the UK Borrower (unless it becomes a borrower under an Incremental European Revolving Facility) or Subsidiaries that are not Loan Parties pursuant to clause (ii) above and (2) by U.S. Loan Parties to Loan Parties (other than U.S. Loan Parties) pursuant to clause (ii) above, plus (C) Guarantees of Indebtedness (1) of the purchase consideration UK Borrower (unless it becomes a borrower under an Incremental European Revolving Facility) or Subsidiaries that are not Loan Parties pursuant to clause (iii) and (2) by U.S. Loan Parties of Indebtedness of Loan Parties (other than U.S. Loan Parties), shall not exceed an aggregate net amount equal to (x) the Merger Agreementgreater of (1) $100 million and (2) 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 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 and intercompany liabilities incurred in connection with the RPC Acquisition 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 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 and 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 Amendment and Restatement 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 Investment (as determined above) at election and the time such Investment was made)amount thereof elected to be so applied;
Appears in 1 contract
Samples: Revolving Credit Agreement (Berry Global Group, Inc.)
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 the following (collectively, “Permitted Investments”):except:
(1a) Guarantees by Holdings, the Transactions Borrowers or any Subsidiary of operating leases (including payment other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by Holdings, any Borrower or any Subsidiary in the purchase consideration under the Merger Agreement)ordinary course of business;
(2i) Investments (other than intercompany loans and Guarantees) by Holdings, the Company or any Subsidiary in the Company or any Subsidiary; (ii) intercompany loans from Holdings, the Company or any Subsidiary to the Company or any Subsidiary; (iii) Guarantees by Holdings, 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 the 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 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 Original Effective Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Domestic Loan Parties or pursuant to clause (iv) by designation of a Person as an Unrestricted Subsidiary (with the value of the Investment therein for such purpose being the Designated Investment Value), plus (B) the aggregate outstanding amount of intercompany loans made after the Original Effective Date by the Loan Parties to Subsidiaries that are not Domestic Loan Parties pursuant to clause (ii), plus (C) the aggregate outstanding amount of Guarantees of Indebtedness made after the Original Effective Date by the Loan Parties of Subsidiaries that are not Domestic Loan Parties pursuant to clause (iii) (other than Guarantees permitted pursuant to Section 6.01(m)(v) and (m)(vi)), 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;
(c) 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 Original 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 Original 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 Holdings 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 Original Effective Date and Investments made pursuant to binding commitments in effect on the Original 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 Original 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 Original 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 Original Effective Date in an aggregate amount (with assets transferred valued at the fair market value thereof) for all such Investments made after the Original Effective Date not to exceed $250.0 million net of returns, repayments and proceeds received of such Investment joint ventures after the Original 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 or any Parent Company 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);
(u) the transfer of the direct ownership of the Foreign Subsidiaries listed on Schedule 6.04(u), or their assets, in one or more steps, to Fincx xx a direct subsidiary thereof;
(v) the transfer of the direct ownership of all of the Equity Interests of Fincx, xx one or more steps, to a new holding company organized under the laws of Luxembourg or such other jurisdiction reasonably acceptable to the Administrative Agent, which new holding company shall be directly owned by the Company and/or any other Domestic Loan Party; and
(w) the transfer of Equity Interests of Celanese Singapore PTE Limited, currently held by Celanese Holding GmbH, in one or more steps, to Elwoxx Xxxurance Limited.
Appears in 1 contract
Samples: Amendment Agreement (Celanese 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 Indebtedness 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 in 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, that (A) Investments made after the Closing Date by any Loan Party pursuant to clause (i) in Subsidiaries that are not Loan Parties, and (B) intercompany loans made after the Closing Date by any Loan Party to Subsidiaries that are not Loan Parties pursuant to clause (ii) and (C) Guarantees after the Closing Date by any Loan Party of Indebtedness of Subsidiaries that are not Loan Parties pursuant to clause (iii), shall not exceed (x) the greater of $75.0 million and 0.20 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;
(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 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 in the Borrower 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 or contemplated as of, the Closing Date (provided, that any such Investment that is (x) not intercompany Indebtedness and (y) in excess of $5.0 million individually shall be 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), (o), (p) (r), (s), (v), (ff), (gg), (ii), (ll)(ii) and (pp)(to the extent in respect of the foregoing clauses);
(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 $100.0 million and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period (plus any returns of capital (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 (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 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, upon the election of the Borrower, 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) 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 $75.0 million and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period (plus 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 (l)); provided that if any Investment pursuant to this this clause (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, upon the election of the Borrower, thereafter be deemed to have been made pursuant to clause (b) above and shall cease to have been made pursuant to this clause (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 any Parent Entity, the Borrower or its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests in the Borrower 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 in the Borrower or any Parent Entity;
(r) any Investment deemed to be made in connection with the issuance of a Letter of Credit for the account or benefit of any subsidiary or other Person designated by the Borrower to the extent permitted hereunder not to exceed $50.0 million in the aggregate at any time outstanding;
(s) Investments in Unrestricted Subsidiaries in an aggregate amount outstanding not to exceed the greater of $60.0 million and 0.15 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period (plus 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 (s)), 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 clause (s) 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 (s) 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 (s) at the time of such redesignation;
(t) Investments consisting of Restricted Payments permitted by Section 6.06;
(u) 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;
(v) [reserved];
(w) Guarantees permitted under Section 6.01 (except to the extent such Guarantee is expressly subject to Section 6.04);
(3x) Investments advances in an amount not to exceed the Available Amount form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the date such Investments are made; provided that no Event of Default has occurred and is continuing immediately prior to making such Investment Borrower or would result therefromany Subsidiary;
(4y) 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 its Subsidiaries, including loans and advances 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 (provided that the amount of any such Investment shall also be deemed to be a Restricted Subsidiaries Payment under the appropriate paragraph of Section 6.06 for all purposes of this Agreement);
(z) Investments consisting of Receivables Assets or arising as a result of Permitted Receivables Financings;
(aa) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing or other arrangements with other persons;
(bb) Investments consisting of or to finance purchases and acquisitions of inventory, supplies, materials, services or equipment or purchases of contract rights or purchases, sales, licenses or sublicenses (including in respect of gaming licenses) or leases of intellectual property;
(cc) Investments received substantially contemporaneously in exchange for Qualified Equity Interests in the Borrower or any Parent Entity; provided that such Investments are not Guarantors; included in any determination of the Cumulative Credit;
(bdd) other Investments so long as, immediately after giving effect to such Investment, 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 Total Leverage Ratio on a Pro Forma Basis would not exceed the greater of 2.25 to 1.00;
(ee) any Investment (i) $25.0 million made pursuant to any Master Lease, any MLSA or any Operations Management Agreement and (ii) 0.50% in connection with the Emergence Restructuring Transactions;
(ff) Investments in joint ventures not in excess of Consolidated Total Assets as (x) the greater of $100.0 million and 0.25 times the date any such Investment is made, 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 capital or sale proceeds 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 (ff); provided that if any Investment pursuant to this clause (ff) 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, upon the 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 clause (ff) for so long as such person continues to be a Subsidiary of the Borrower;
(gg) any Investment (i) deemed to exist as a result of a Subsidiary that is not a Loan Party distributing a note or other intercompany debt to a parent of such Subsidiary that is a Loan Party (to the extent there is no cash consideration or services rendered for such note), (ii) consisting of intercompany current liabilities in connection with the cash management, tax and accounting operations of the Borrower and the subsidiaries and (iii) consisting of 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; and
(hh) 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, in close proximity to or otherwise for the benefit of any project (as reasonably determined by the Borrower) not to exceed at any one time in the aggregate the greater of $40.0 million and 0.10 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, which Investments may (but are not required to) be made pursuant to (or in lieu of) dispositions in the manner contemplated under Sections 6.05(p) or (q) or received in consideration for dispositions under Sections 6.05(p) or (q). Any Investment in any person other than a Loan Party that is otherwise permitted by this Section 6.04 may be made through intermediate Investments in Subsidiaries that are not Loan Parties and such intermediate Investments shall be disregarded for purposes of determining the outstanding amount of Investments pursuant to any clause set forth above. 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 subsequent write-downs or write-offs thereof. For purposes of determining compliance with this covenant, (A) an Investment need not be permitted solely by reference to one category of permitted Investments (which or portion thereof) described in the above clauses 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 categories of permitted Investments (or any portion thereof) described in the above clauses, the Borrower may, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such amount shall not exceed permitted Investment (or any portion thereof) in any manner that complies with this covenant and at the time of classification or reclassification will be entitled to only include the amount and type of such Investment (as determined aboveor any portion thereof) at in one of the time such Investment was made);categories of permitted Investments (or any portion thereof) described in the above clauses.
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 Personperson, except except:
(a) investments by Terex and its Restricted Subsidiaries existing on the following Closing Date in the Equity Interests of the Subsidiaries and other investments by Terex and its Restricted Subsidiaries existing on the Closing Date and set forth in Schedule 6.04;
(collectively, “b) Permitted Investments”):;
(1c) investments in XX Xxxxx not exceeding $25,000,000 at any time outstanding;
(d) Terex or any Restricted Subsidiary may make any Permitted Acquisition; provided that Terex or, if such Restricted Subsidiary is a Subsidiary Guarantor, such Subsidiary Guarantor complies, and causes any acquired entity to comply, with the applicable provisions of Section 5.11 and the Security Documents with respect to the person or assets so acquired;
(e) the Transactions Borrowers and their respective Restricted Subsidiaries may make loans and advances to employees for moving, entertainment, travel and other similar expenses in the ordinary course of business;
(including payment of f) Consolidated Capital Expenditures;
(g) cash collateral provided to the purchase consideration under Collateral Agent pursuant to the Merger AgreementLoan Documents;
(h) promissory notes issued by any purchaser in connection with any Asset Sale permitted pursuant to Section 6.05(b);
(2i) provided that (a) no Default or Event of Default shall have occurred and be continuing at the time of such payment or after giving effect thereto, and (b) the Consolidated Leverage Ratio shall be less than or equal to 3.75 to 1.00,
(A) the purchase by Terex of shares of its common stock (for not more than fair market value) in connection with the delivery of such stock to grantees under any stock option plan (upon the exercise by such grantees of their stock options) or any other deferred compensation plan of Terex approved by its board of directors and (B) the repurchase of shares of, or options to purchase shares of, common stock of Terex or any of its Subsidiaries from employees, former employees, directors or former directors of Terex or any of its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors) pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) approved by its board of directors under which such individuals purchase or sell or are granted the option to purchase or sell, such common stock;
(j) accounts receivable arising in the ordinary course of business from the sale of inventory;
(k) Guarantees constituting Indebtedness permitted by Section 6.01;
(l) investments in joint ventures in Related Businesses and investments in Unrestricted Subsidiaries (including XX Xxxxx); provided that at the time of such investment and immediately after giving effect thereto, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) the Consolidated Leverage Ratio shall be less than or equal to 3.75 to 1.00;
(m) intercompany loans and advances to officersconstituting Indebtedness permitted by Section 6.01(e);
(n) provided that no Default or Event of Default shall have occurred and be continuing or would result therefrom, directors, employees or consultants of any Parent Entity, the Borrower investments made by Terex or any Restricted Subsidiary not to exceed $15.0 million the extent the consideration paid by Terex or such Restricted Subsidiary for such investment consists of equity of Terex;
(o) other investments in an aggregate principal amount (without giving effect to any write down or write off thereof) not exceeding $75,000,000 at any time outstanding (calculated without regard to write-downs or write-offs thereof after the date made)outstanding;
(3p) Investments investments in an amount Finsub 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 exceeding $50,000,000 at any time outstanding; and and
(cq) Hedging Agreements to the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that is Guaranteed extent permitted 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(316.01(d), 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 (Terex 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 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) 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 by the Borrower 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;
(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; and
(x) 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 First Lien Secured Net Leverage Ratio on a Pro Forma Basis is not greater than 3.75 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 (x) 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 (x), the Borrower may, in its sole discretion, divide, classify or reclassify 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 1 contract
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 $150,000,000;
(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 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 in, or the acquisition of all or any substantial part of the assets of (each, a an “Investment”), any other Personperson, except the following (collectively, “Permitted Investments”):except:
(1a) Investments made pursuant to the Transactions;
(i) 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) after the 2011 Amendment Effective Date by the Loan Parties pursuant to clause (i) in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans after the 2011 Amendment Effective Date to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii), plus (C) Guarantees of Indebtedness after the 2011 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) $50.0 million (plus any return of capital (to the extent received by the Borrower or a Subsidiary Loan Party in cash) in respect of investments made pursuant to this paragraph (b)); plus (y) the Transactions (including payment portion, if any, of the purchase consideration under Available Investment Basket Amount on the Merger Agreementdate of such election that the Borrower elects to apply to this Section 6.04(b)(y);
(2c) Permitted Investments, or any 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 Entity, the Borrower or any Restricted Subsidiary 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) and (ii) advances of payroll payments and expenses to employees 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 permitted pursuant to Section 6.10;
(h) Investments existing on, or contractually committed as of, the 2007 Amendment Effective Date and set forth on Schedule 6.04;
(i) Investments resulting from pledges and deposits referred to in Sections 6.02(f) and (g);
(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) since the 2007 Amendment Effective Date 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 50.0 million and (ii) 0.504.25% 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) if as of the last day of the immediately preceding Test Period the Borrower shall have been in compliance with the Incurrence Test (on a Pro Forma Basis), the portion, if any, of the Available Investment Basket Amount on the date of such election that the Borrower elects to apply to this Section 6.04(j)(ii);
(k) Investments, including Investments in Subsidiaries, constituting or in contemplation of Permitted Business Acquisitions;
(l) intercompany loans between Foreign Subsidiaries and Guarantees permitted by Section 6.01(l);
(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;
(n) Investments of a Subsidiary acquired after the 2007 Amendment Effective Date or of a corporation merged into the Borrower or merged into or consolidated with a Subsidiary in accordance with Section 6.05 after the 2007 Amendment 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;
(o) acquisitions by the Borrower of obligations of one or more officers or other employees of the Borrower or any Subsidiary in connection with such officer’s or employee’s acquisition of Equity Interests of the Borrower, so long as no cash or other property is (or will be or is committed to be) actually advanced by the Borrower or such Subsidiary to any person 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 such Subsidiary in the ordinary course of business;
(q) Investments made using Equity Interests of the Borrower; and
(which such amount shall not exceed r) Investments made in any Foreign Subsidiary in the amount ordinary course of such Investment (as determined above) at business and in a manner reasonably consistent with past practice of the time such Investment was made);Borrower.
Appears in 1 contract
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) (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 1 contract
Samples: Credit Agreement (Enviva 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 the Merger Agreement)Subsidiaries;
(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; 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 Borrowers with the prior written consent of the Required Lenders;
(h) 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 Investments are madeassets or such person referred to herein as the "ACQUIRED ENTITY" and any acquisition completed under this subsection 6.04(h) is a "PERMITTED ACQUISITION"); provided PROVIDED that each of the following conditions is satisfied:
(i) the Acquired Entity shall be a going concern and shall be in a line of business reasonably related to that of the Borrowers and their Subsidiaries as conducted during the current and most recent calendar year;
(ii) the Acquired Entity shall have approved such transaction;
(iii) the Borrowers shall have delivered to the Administrative Agent at least 5 Business Days prior to consummation of the acquisition a certificate of a Financial Officer demonstrating, in reasonable detail, that, 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 be continuing immediately prior or shall exist, (B) the Borrowers are in compliance with the covenants set forth in Sections 6.09, 6.10, 6.11, 6.12 and 6.13 as of the last day of the most recent fiscal quarter preceding such acquisition, and would be in compliance on a PRO FORMA basis with such covenants as of the last day of the month preceding such acquisition, and (C) all calculations necessary to making such Investment determine compliance with the conditions in clauses (vi) or (vii) below. All PRO FORMA calculations required to be made pursuant to this subsection 6.04(h) shall (i) include only those adjustments that would result therefrombe permitted or required by Regulation S-X, (ii) be based on reasonably detailed written assumptions which accompany the certificate and shall be acceptable to the Administrative Agent, and (iii) be certified by a Financial Officer as having been prepared in good faith based upon reasonable assumptions;
(4iv) Permitted Acquisitions the Borrowers shall comply with Sections 5.12, 6.15 and pre-existing Investments held by Persons acquired in Permitted Acquisitions the relevant provisions of the other Loan Documents with respect to the Acquired Entity and its assets or acquired in connection with Permitted Acquisitionsany new Subsidiary formed to effect the acquisition;
(5v) intercompany Investments among the Borrower Borrowers shall have delivered to the Lenders consolidating financial statements for each Borrower, each Subsidiary and the Restricted Subsidiaries Acquired Entity for the most recent fiscal year and fiscal quarter prior to the date of acquistion in question, and the financial statements of the Acquired Entity for the most recent fiscal year prior to the date of acquistion in question audited by an independent certified public accountant; PROVIDED THAT if the total amount expended (including intercompany Indebtedness); provided that the sum value of any Equity Issuance) is LESS than $30,000,000 and the Cash Components for such acquisition are LESS than $15,000,000, the Borrowers shall not be required to deliver financial statements for the Acquired Entity audited by an independent certified public accountant to the extent such statements have not been delivered to the Borrowers or their subsidiaries;
(vi) for any acquisition in which the Cash Components are no more than $4,000,000 for any individual acquisition or $13,000,000 in the aggregate during the term of this Agreement, (a) the aggregate fair market value Fixed Charge Coverage Ratio for the four quarters ending on the last day of all the most recent fiscal quarter preceding such Investments acquisition was, and the Fixed Charge Coverage Ratio for the 12 months ending on the last day of the month preceding such acquisition (such last day of the preceding month or such last day of the preceding fiscal quarter, a "Measurement Date"), would be, on a PRO FORMA basis, at least 0.75 to 1.0 if the Measurement Date is on or prior to September 30, 1999 and at least 1.0 to 1.0 if the Measurement Date occurs thereafter and (b) after giving effect to the acquisition, the actual Undrawn Availability at closing (calculated for these purposes without including the Inventory or Receivables of the Acquired Entity and without reserving for the Term Loans under Section 2.01(a)(iv)) is at least the lesser of (x) $5,000,000 and (y) 10% of the sum of the amounts calculated under clauses (i), (ii) and (v) of the definition of Formula Amount or if the Administrative Agent has completed its audit of the Acquired Entity with results satisfactory to the Administrative Agent in its Permitted Discretion, the actual Undrawn Availability at closing calculated for the Borrowers and the Acquired Entity (calculated for these purposes without reserving for the Term Loans under Section 2.01(a)(iv)) is at least $10,000,000;
(vii) for any acquisition other than intercompany Indebtedness an acquisition described in clause (vi), (a) the Cash Components may be no more than $15,000,000 for any acquisition, no more than $40,000,000 in any twelve month period, and Guarantees no more than $60,000,000 during the term 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 Guarantorsthis Agreement; (b) the aggregate principal amount Fixed Charge Coverage Ratio for the four quarters ending the last day of Indebtedness owing to the Borrower most recent fiscal quarter preceding such acquisition was, and the Guarantors Fixed Charge Coverage Ratio for the 12 months ending on the last day of the month preceding such acquisition would be, on a PRO FORMA basis, at least the higher of (x) 1.1 to 1.0 or (y) the ratio required by Restricted Subsidiaries that are not Guarantors at any time outstandingSection 6.10; and (c) after giving effect to the aggregate principal amount acquisition, the PRO FORMA average daily Undrawn Availability at closing (calculated for these purposes without including the Inventory or Receivables of Indebtedness the Acquired Entity and without reserving for the Term Loans under Section 2.01(a)(iv)) for the most recent January to June period (or until June, 2000, the Undrawn Availability at closing) would be greater than $15,000,000 or, if the Administrative Agent has completed its audit of Restricted Subsidiaries that are not Guarantors that is Guaranteed by the Borrower Acquired Entity with results satisfactory to the Administrative Agent in its Permitted Discretion, the actual Undrawn Availability at closing calculated for the Borrowers and the Guarantors Acquired Entity (calculated for these purposes without reserving for the Term Loans under Section 2.01(a)(iv)) is at least $20,000,000;
(viii) any time outstandingIndebtedness incurred in connection with the acquisition, together including any Acquired Debt and any Subordinated Debt, must be permitted under Section 6.01; and
(ix) in no event may any Equity Issuance in connection with any Investments made in Restricted Subsidiaries that are not Guarantors pursuant acquisition exceed a number of shares of Activision common stock (or equivalents) equal to Section 6.04(31), may not exceed 40% of the greater issued and outstanding common stock of Activision on such date and all Equity Issuances shall be of common equity or equivalents;
(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 Borrowers may enter into Hedging Agreements to any returns of capital or sale proceeds actually received the extent permitted 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 madeSection 6.01(d);
Appears in 1 contract
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 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 of RES and the Transactions RES Subsidiaries (including payment i) existing on the date hereof in the capital stock of the purchase consideration under the Merger AgreementRES Subsidiaries; (ii) by RES or any RES Subsidiary in any Wholly Owned RES Subsidiary; (iii) by any Wholly Owned RES Subsidiary in any Wholly Owned RES Subsidiary; (iv) by any RES Subsidiary in any Wholly Owned RES Subsidiary (so long as such RES Subsidiary shall remain a Wholly Owned RES Subsidiary 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 RES or any RES Subsidiary of noncash consideration for the sale of assets permitted under Section 6.05;
(d) intercompany loans permitted to be incurred as Indebtedness under Section 6.01;
(e) (i) loans and advances to officers, directors, employees of RES or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary RES Subsidiaries not to exceed $15.0 million 600,000 in an the aggregate principal amount at any time outstanding and (calculated without regard ii) advances of payroll payments and expenses to write-downs such 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 write-offs 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(c);
(3h) Investments investments of RES and the RES Subsidiaries, other than investments listed in an amount not to exceed paragraphs (a) through (g) of this Section, existing on the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred Closing Date and is continuing immediately prior to making such Investment or would result therefromset forth on Schedule 6.04;
(4i) Permitted Acquisitions investments resulting from pledges and pre-existing Investments held by Persons acquired deposits referred to in Permitted Acquisitions Section 6.02(g) or acquired in connection with Permitted Acquisitions(h);
(5j) intercompany Investments among the Borrower investments of RES and the Restricted RES Subsidiaries consisting of repurchases of Existing Notes pursuant to the Debt Tender Offer; and
(including intercompany Indebtedness); provided that k) investments, loans or advances of RES and the sum of RES Subsidiaries in addition to those permitted by paragraphs (a) through (j) not exceeding 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 $500,000 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
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 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 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 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) by the Transactions (including payment Borrower existing on the date hereof in the Capital Stock of the purchase consideration Subsidiaries and STC, or (ii) by STFI in the Capital Stock of the Borrower;
(b) Permitted Investments and investments that were Permitted Investments when made;
(c) in the case of the Borrower, Interest Rate Protection Agreements entered into in accordance with Section 5.13;
(d) intercompany loans permitted to be incurred as Indebtedness under the Merger AgreementSection 6.01(g);
(2e) (i) loans and advances to officers, directors, employees or consultants of any Parent EntitySTFI, the Borrower or any Restricted Subsidiary the Subsidiaries not to exceed $15.0 million 1,000,000 in an the aggregate principal amount 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;
(3i) 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 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 consistent with the past practices 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 Acquired Business, STFI, the Borrower and the Restricted Subsidiaries Subsidiaries;
(including intercompany Indebtedness); g) investments, other than investments listed in paragraphs (a) through (f) of this Section, existing on the Closing Date and set forth on Schedule 6.04;
(h) ownership interests in Unrestricted Subsidiaries, provided that the sum capitalization requirement set forth in clause (vii) of (a) the aggregate fair market value definition of "Unrestricted Subsidiary" shall at 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 times be satisfied;
(i) $25.0 million and in the case of STFI, ownership interests in STFI Unrestricted Subsidiaries, provided that the capitalization requirement set forth in clause (iig) 0.50% of Consolidated Total Assets as of the date any such Investment is made, plus an amount equal to any returns definition of capital or sale proceeds actually received in respect of any such Investments (which such amount "STFI Unrestricted Subsidiary" shall not exceed the amount of such Investment (as determined above) at the time such Investment was made)all times be satisfied;
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 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];
(2b) (i) 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 1 contract
Samples: Incremental Assumption Agreement (Momentive 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 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 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;
(4i) Permitted Acquisitions 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) 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 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) the Borrower shall be in compliance with Sections 6.13(a) and (b) calculated on a pro forma basis, (E) 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 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 may request, in order to grant, preserve, protect and perfect such Investment 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 (G) the total aggregate consideration for any single acquisition (or series of related acquisitions) of such Capital Stock or assets shall not exceed $20,000,000 (such consideration to include, without limitation, the amount of Indebtedness incurred pursuant thereto as permitted by Section 6.01(j)) (any acquisition satisfying each of the 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 madea 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, plus THAT, (i) such 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 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 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 $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;
(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) 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);
(3i) 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; and
(aa) other Investments, provided, that after giving effect to such Investment on a Pro Forma Basis, the Payment Conditions are satisfied. 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: Asset Based Revolving Credit Agreement (Momentive Performance Materials 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 Person, except the following (collectively, “Permitted Investments”):except:
(1a) investments by the Transactions (including payment Borrower existing on the Restatement Closing Date in the capital stock of the purchase consideration under Subsidiaries and additional investments by Holdings in the Merger AgreementCapital Stock of the Borrower or by the Borrower in the Capital Stock of the Subsidiary Guarantors (other than Ashland);
(2b) Permitted Investments;
(c) investments, loans or advances made by any Loan Party to the Borrower or any Subsidiary, provided that any such loans or advances are evidenced by an intercompany note pledged to the Collateral Agent pursuant to the Pledge Agreement for the benefit of the Secured Parties;
(d) investments consisting of non-cash consideration received in connection with a sale of assets permitted by Section 6.05(b);
(e) loans and advances to officers, directors, employees or consultants and officers of any Parent Entity, the Borrower or any Restricted Subsidiary not to exceed $15.0 million of the Subsidiaries for travel, entertainment and relocation expenses in the ordinary course of business in an aggregate principal amount outstanding at any one time outstanding (calculated without regard not to write-downs or write-offs thereof after the date made)exceed $500,000;
(3f) Investments loans and advances in an aggregate principal amount outstanding at any one time not to exceed the Available Amount as $2,000,000 to management and other employees of the date such Investments Borrower or the Subsidiaries, the proceeds of which are madeused in their entirety to purchase capital stock of Holdings, ACP Holdings or ACP Products or any successor thereto and other investments pursuant to retirement savings programs or to pay fees and expenses (including taxes) incurred in connection therewith;
(g) the Borrower may make any Permitted Acquisition; 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 (ai) the aggregate fair market value purchase price of all such Investments (other than intercompany Indebtedness and Guarantees of Indebtedness) made since Permitted Acquisitions consummated after the Restatement Closing Date does not exceed $80,000,000, (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; (bii) the aggregate principal amount of Indebtedness owing all Revolving Loans and Letters of Credit at any one time outstanding used to finance the cash consideration and fees and expenses paid in connection with all Permitted Acquisitions consummated after the Restatement Closing Date shall not exceed $30,000,000 and (iii) the Borrower shall have delivered to the Administrative Agent a certificate certifying that at the time of and immediately after giving effect to such Permitted Acquisition, (A) no Event of Default or Default shall have occurred and be continuing, (B) the Borrower shall be in compliance on a pro forma basis (including as adjusted to reduce or exclude any identified costs that will be reduced or will cease to be incurred after such Permitted Acquisition) with the covenants set forth in Sections 6.11, 6.12 and 6.13 in each case as of the last day of the 70 65 most recent fiscal quarter adjusted to give effect (as if such event had occurred on the first day of the four fiscal quarter period ended on such last day) to such Permitted Acquisition and the Guarantors by Restricted Subsidiaries that are not Guarantors at any time outstanding; financing therefor, and the adjustments and calculations set forth in such certificate shall be based on assumptions and otherwise in form and substance satisfactory to the Administrative Agent and (cC) the aggregate principal amount Senior Debt Leverage Ratio as of Indebtedness the most recent fiscal quarter 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 preceding such Permitted Acquisition for which financial statements are available shall not Guarantors exceed 2.50 to 1.00;
(h) Consolidated Capital Expenditures permitted pursuant to Section 6.04(31), may not exceed the greater of 6.10;
(i) $25.0 million Accounts;
(j) ordinary course Interest Rate Protection Agreements and ordinary course, non-speculative foreign exchange and commodity protection agreements; and
(iik) 0.50% of Consolidated Total Assets as of investments by the borrower existing on the restatement closing 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);design technologies.
Appears in 1 contract
Samples: Credit Agreement (Neenah Foundry Co)
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 Closing 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 (other than any Securitization Subsidiary) and the Escrow Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to the U.S. Collateral Agreement or another Security Document (subject to the Agreed Security Principles), (B) the Transactions (including payment aggregate amount of the purchase consideration under the Merger Agreement);
(2) investments, loans and advances by Loan Parties to officersEscrow Subsidiaries shall not exceed the amount reasonably determined by Holdings to be 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 amount of any Parent Entityinvestments by Loan Parties in, and loans and advances by Loan Parties to, Escrow Subsidiaries and Subsidiaries of Holdings that are not Loan Parties made after the Borrower or any Restricted Subsidiary not to exceed $15.0 million in an aggregate principal amount at any time outstanding Closing 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 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 Maximum Investment Amount at any time outstanding (it being understood that any investment, loan and advance subject to this proviso shall no longer be deemed to be outstanding if the Escrow Subsidiary or Subsidiary that received such Investment (as determined above) at the time such Investment was madeinvestment, loan or advance subsequently becomes, or is merged into, amalgamated or consolidated with, a Loan Party);
Appears in 1 contract
Samples: Credit Agreement (ASC 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 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 Effective Date in the capital stock of the purchase consideration under Subsidiaries; (ii) by UCAR in the Merger Agreementcapital stock of the Borrower; (iii) by the Borrower or any Subsidiary in any Wholly Owned Subsidiary that is a Guarantor (so long as such Guarantor shall remain a Wholly Owned Subsidiary after giving effect to such investment); (iv) by any Wholly Owned Subsidiary in any Wholly Owned Subsidiary that is a Guarantor; (v) by any Subsidiary that is not a Guarantor in any Wholly Owned Subsidiary that is not a Guarantor (so long as such Subsidiary shall remain a Wholly Owned Subsidiary after giving effect to such investment); or (vi) that constitute Permitted Foreign Transfers (subject in the case of Specified Permitted Transactions to the limitations set forth in paragraph (k) below);
(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 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 $1,000,000) is pledged upon receipt pursuant to the Pledge Agreements to the extent required thereby;
(d) intercompany loans permitted to be incurred as Indebtedness under Section 6.01;
(e) (i) loans and advances to officers, directors, employees or consultants of any Parent EntityUCAR, the Borrower or any Restricted Subsidiary the Subsidiaries not to exceed $15.0 million 6,000,000 in an the aggregate principal amount at any time outstanding (calculated without regard excluding up to write-downs $3,000,000 in loans existing on the Effective Date to former employees) 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 write-offs 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 consistent with the past practices of UCAR, the Borrower and the Subsidiaries;
(g) Interest/Exchange Rate Protection Agreements permitted pursuant to Section 6.01(d);
(3h) Investments investments, other than investments listed in an amount not to exceed paragraphs (a) through (g) of this Section, existing on the Available Amount as of the date such Investments are made; provided that no Event of Default has occurred Effective Date and is continuing immediately prior to making such Investment or would result therefromset forth on Schedule 6.04;
(4i) Permitted Acquisitions investments resulting from pledges and pre-existing Investments held by Persons acquired deposits referred to in Permitted Acquisitions Section 6.02(g) or acquired in connection with Permitted Acquisitions(h);
(5j) intercompany Investments among investments constituting Permitted Business Acquisitions made either as Capital Expenditures pursuant to Section 6.10 or, to the Borrower and extent not used for other purposes permitted hereunder, made with funds that if not so spent would constitute Net Proceeds under clause (a) of the Restricted Subsidiaries definition of "Net Proceeds" (including intercompany Indebtednesssubject to the limitation set forth in the second proviso to such clause (a));
(k) investments constituting Permitted Other Acquisitions or Specified Permitted Transactions; provided PROVIDED that the sum of (ai) 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 Specified Permitted Transactions and (ii) 0.50% the aggregate amount of Consolidated Total Assets consideration (whether cash or property, as of valued at the date any time each such Investment 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 ) for all Permitted Other Acquisitions acquired after the Effective Date shall not exceed (net of any return representing return of capital of (but not return on) any such investment) at any time (A) the amount set forth on Schedule A for the Leverage Ratio that is in effect at such time (it being agreed that any such investment permitted when made shall not cease to be permitted as a result of the applicable Leverage Ratio subsequently changing) PLUS, (B) to the extent not used for other purposes permitted hereunder, the funds that if not so spent would constitute Net Proceeds under clause (a) of the definition of "Net Proceeds" (subject to the limitation set forth in the second proviso to such clause (a));
(l) investments in Permitted Business Acquisitions and Unrestricted Subsidiaries to the extent made with proceeds of the issuance of Capital Stock of UCAR (to the extent not previously used to prepay Indebtedness (other than Revolving Loans or Swingline Loans), make any investment or capital expenditure or otherwise for any purpose resulting in a deduction to Excess Cash Flow in any fiscal year) issued after the Original Closing Date (after application of the Net Proceeds of such Investment issuance to prepay Obligations in accordance with Section 2.12(d) and the Existing Credit Agreement); and
(m) investments by the Borrower or any Subsidiary in any Subsidiary resulting from or in connection with the formation of a European holding company and any related reorganization or restructuring of the Subsidiaries that occurs in connection therewith; PROVIDED that, after giving effect to any such formation, reorganization or restructuring (COLLECTIVELY, THE "EUROPEAN HOLDING COMPANY STRATEGY"), the Collateral Requirement and Guarantee Requirement shall be satisfied in a manner reasonably satisfactory to the Administrative Agent. PROVIDED, HOWEVER, that the aggregate amount of the consideration (whether cash or property, as determined above) valued at the time each such Investment was investment is made);) for all investments made in Unrestricted Subsidiaries (other than investments made therein pursuant to paragraph (l) above) after the Effective Date shall not exceed (net of return of capital of (but not return on) any such investment) $50,000,000 at any time, PROVIDED FURTHER, HOWEVER, that no more than $25,000,000 of such amount at any time may be invested in Unrestricted Subsidiaries not engaged primarily in Related Businesses.
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 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 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, 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) 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) 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 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) $50 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)); plus (y) the portion, if any, of the Available Investment Basket Amount on the date of such election that the 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 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;
(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 Entity, the Borrower or any Restricted Subsidiary in the ordinary course of business not to exceed $15.0 15 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, 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 6.13;
(h) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 6.04;
(i) Investments resulting from pledges and deposits referred to in Section 6.02(f) and (g);
(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 75 million and (ii) 0.504.0% 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 Available Investment Basket Amount on the date of such election that the Borrower elects to apply to this Section 6.04(j)(ii);
(k) Investments constituting Permitted Business Acquisitions;
(l) intercompany loans between Foreign Subsidiaries and Guarantees 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;
(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 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;
(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; and
(q) Investments (which such amount shall not exceed the amount arising as a result of such Investment (as determined above) at the time such Investment was made);Permitted Receivables Financings.
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) 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 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 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 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 (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 (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 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 (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 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 Parent Entity);
(r) [Reserved];
(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) [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 such Subsidiary;
(x) 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);
(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 Cumulative Credit; and
(cc) Investments in joint ventures not in excess of the greater of $65 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to exceed $15.0 million 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 (cc) 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(cc) shall thereafter be deemed to have been made pursuant to such other provision 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 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. 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 except:
(a) investments by the following Borrowers in the Equity Interests of the Subsidiaries, in each case existing on the date hereof, and additional investments in the Equity Interests of Subsidiary Guarantors and the Canadian Borrower; provided that (collectivelyi) any such Equity Interests held by a Loan Party shall be pledged pursuant to a Pledge Agreement (subject to the limitations applicable to voting Equity Interests of a Foreign Subsidiary referred to in Section 4.02(f)) and (ii) the aggregate amount of investments by Loan Parties in, “and loans and advances by Loan Parties to, Subsidiaries that are not Loan Parties shall not exceed U.S. $5,000,000 at any time outstanding;
(b) Permitted Investments”):;
(1c) accounts receivable owing to the Transactions (including payment Borrowers or any of the purchase Subsidiaries arising from sales of inventory under usual and customary terms in the ordinary course of business;
(d) advances to directors, officers and employees of the Borrowers or any of the Subsidiaries to meet expenses incurred by such directors, officers and employees in the ordinary course of business, in an aggregate amount not to exceed U.S.$2,000,000 at any time outstanding;
(e) securities of any customer of a Borrower or any Subsidiary received in lieu of cash payment, if such Borrower reasonably deems such customer to be in a reorganization or unable to make a timely cash payment on Indebtedness of such customer owing to it, provided that such Borrower or such Subsidiary, as the case may be, has paid no new consideration under (other than forgiveness of Indebtedness) therefor;
(f) any Subsidiary may make intercompany loans to a Borrower or any Subsidiary Guarantor and each Borrower may make intercompany loans and advances to the Merger Agreementother Borrower or any Subsidiary Guarantor; provided that (i) no Loan Party may make loans to any Foreign Subsidiaries (other than the Canadian Borrower and the Canadian Subsidiaries) pursuant to this paragraph (f);
(2g) the Loan Parties may make loans and advances to officers, directors, employees or consultants Foreign Subsidiaries (other than the Canadian Borrower and the Canadian Subsidiaries) so long as the aggregate amount of any Parent Entityloans and, the Borrower or any Restricted Subsidiary not to exceed $15.0 million in an aggregate principal amount advances at any time outstanding 86 80 (calculated determined without regard to any write-downs or write-offs thereof after the date made)thereof) pursuant to this paragraph (g) shall not exceed U.S.$5,000,000;
(3h) Investments the Borrower may enter into Hedging Agreements to the extent permitted by Section 6.14;
(i) the U.S. Borrower or any wholly owned Domestic Subsidiary or the Canadian Borrower or any wholly owned Canadian Subsidiary may acquire all or substantially all the assets of a person or line of business of such person primarily located in an amount the United States or Canada, or not to exceed the Available Amount as less than 100% of the date such Investments are madeEquity Interests of a person that would become a wholly owned Domestic Subsidiary or a wholly owned Canadian Subsidiary (in each case 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 U.S. Borrower or any Subsidiary; (ii) the Acquired Entity shall be a going concern and shall be in a similar line of business as that of the Borrower and the Subsidiaries; (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 be continuing; (B) the Borrowers would be in compliance with the covenants set forth in Sections 6.10, 6.11, 6.12 and 6.13 as of the most recently completed period of four consecutive fiscal quarters ending prior to making such Investment transaction for which the financial statements and certificates required by Section 5.04(a) or 5.04(b) have been delivered or for which comparable financial statements have been filed with the Securities and Exchange Commission, after giving pro forma effect to such transaction and to any other event occurring during or after such period as to which pro forma recalculation is appropriate (including any Asset Sale and any other transaction described in this Section 6.04(i) occurring during or after such period) as if such transaction had occurred as of the first day of such period and (C) after giving effect to such acquisition, there must be at least U.S.$10,000,000 of the Total Commitment unused and available; (iv) the consideration for any such acquisition shall not exceed U.S.$25,000,000; and (v) for the period commencing on the Closing Date and ending with the third anniversary of the Closing Date, the aggregate consideration for all such acquisitions shall not exceed U.S.$75,000,000 (any acquisition of an Acquired Entity meeting all the criteria of this Section 6.04(i) being referred to herein as a "Permitted Acquisition"). All pro forma calculations required to be made pursuant to this Section 6.04(i) shall (i) include only those adjustments that would result therefrombe permitted or required by Regulation S-X under the Securities Act of 1933, as amended and (ii) be certified to by a Financial Officer as having been prepared in good faith based upon reasonable assumptions;
(4j) Permitted Acquisitions the Borrowers and pre-existing Investments held by Persons acquired the Subsidiaries may consummate the Transactions and the U.S. Borrower may issue shares of its common stock in Permitted Acquisitions or acquired in connection with Permitted Acquisitionsexchange for the Exchangeable Shares of PTI Holdco;
(5k) intercompany Investments among investments existing on the Borrower date hereof and set forth on Schedule 6.04;
(l) investments consisting of non-cash proceeds of Asset Sales for which the Restricted Subsidiaries consideration consists of at least 75% cash as required under Section 6.05; and
(including intercompany Indebtedness); provided that the sum of (am) the aggregate fair market value of all such Investments other investments, loans and advances (other than intercompany Indebtedness investments in and Guarantees of Indebtednessloans and advances to Foreign Subsidiaries) made since the Closing Date in an aggregate amount (with all such Investments being valued at their original fair market value and without taking into account subsequent increases cost or decreases in valueoutstanding principal amount, as the case may be) 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 greater than U.S.$10,000,000 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
Investments, Loans and Advances. Purchase, hold or acquire (including pursuant to any merger, merger or consolidation or amalgamation with a Person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation merger or amalgamationconsolidation) 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 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 Effective Date by (including payment i) Loan Parties in Subsidiaries that are not Loan Parties in an aggregate outstanding amount (calculated without giving effect to any write-off or write-down thereof) not to exceed an amount equal to the greater of (A) U.S.$2,500,000 and (B) 6.25% of EBITDA as of the purchase consideration under last day of the Merger Agreement)most recently ended Test Period; (ii) Loan Parties in other Loan Parties and (iii) 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 Subsidiary of non- cash consideration for the sale of assets permitted under Section 6.05;
(i) loans and advances to officers, directors, employees or consultants of any Parent Entity, the Borrower or any Restricted Subsidiary in the ordinary course of business not to exceed $15.0 million U.S.$500,000 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;
(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 Effective Date and set forth on Schedule 6.04;
(h) Investments resulting from pledges and deposits referred to in Sections 6.02(f) and 6.02(g);
(3i) so long as immediately before and after giving effect thereto no Event of Default shall be continuing, Investments in connection with joint ventures and minority investments in an aggregate outstanding amount (calculated without giving effect to any write-off or write-down thereof) not to exceed the greater of (i) U.S.$2,500,000 and (ii) 6.25% of EBITDA as of the last day of the most recently ended Test Period; provided that the aggregate outstanding amount (calculated without giving effect to any write- off or write-down thereof) of Investments made in reliance upon this Section 6.04(i), together with the aggregate outstanding amount (calculated without giving effect to any write-off or write-down thereof) of any Investments made in reliance upon Section 6.04(t), in each case to the extent made during the Covenant Relief Period, shall not exceed the greater of (x) U.S.$3,000,000 and (y) 7.50% of EBITDA as of the last day of the most recently ended Test Period;
(j) so long as the Available Amount Conditions are satisfied at the time of such Investment, other 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 therefromAmount;
(4k) Investments constituting Permitted Acquisitions and preBusiness Acquisitions; provided that, for all Non-existing Investments held by Persons acquired in Guarantor Permitted Acquisitions Business Acquisitions, the aggregate amount consideration paid or acquired in connection with Permitted Acquisitions;
(5) intercompany Investments among the Borrower and the Restricted Subsidiaries payable (including intercompany Indebtedness); provided that the sum of (apurchase price, all deferred payments, all Indebtedness assumed and all other consideration) the aggregate fair market value of for 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 Non-Guarantor Permitted Business Acquisitions shall not exceed the greater of (i) $25.0 million U.S.$3,900,000 and (ii) 0.5010.0% of Consolidated Total Assets EBITDA as of the last day of the most recently ended Test Period; provided further that no Investments shall be made in reliance upon this Section 6.04(k) during the Covenant Relief Period;
(l) Investments (including, but not limited to, Investments in Equity Interests, intercompany loans, and Guarantees of Indebtedness otherwise expressly permitted hereunder) after the Effective Date by Subsidiaries that are not Loan Parties in any Loan Party or other Subsidiary;
(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;
(o) Investments of a Subsidiary acquired after the Effective Date or of a Person merged into the Borrower 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;
(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 any Subsidiary in the ordinary course of business;
(q) promissory notes or other obligations issued to the Borrower or any of the Subsidiaries by directors, officers, employees or consultants in connection with such person’s purchase of Equity Interests of any direct or indirect equityholder of Holdings, so long as no cash or Permitted Investments is advanced in connection with such Investment;
(r) Investments acquired in connection with any Permitted Business Acquisition, including any existing Investments held by any Person acquired in a Permitted Business Acquisition (provided that such Investment is madenot made in contemplation of such Permitted Business Acquisition);
(s) other Investments; provided that, plus both immediately prior to and after giving effect (including pro forma effect) thereto, (i) no Event of Default shall exist or would result therefrom, (ii) the Borrower is in compliance with the Financial Covenants calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period and (iii) the Net Leverage Ratio shall not exceed 2.75 to 1.00 calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period; and
(t) other Investments in an aggregate outstanding amount equal (without giving effect to any returns write-off or write-down thereof) not to exceed the greater of capital (i) U.S.$5,000,000 and (ii) 12.5% of EBITDA as of the last day of the most recently ended Test Period; provided that the aggregate outstanding amount (calculated without giving effect to any write-off or sale proceeds actually received write-down thereof) of Investments made in respect reliance upon this Section 6.04(t), together with the aggregate outstanding amount (calculated without giving effect to any write-off or write-down thereof) of any such Investments (which such amount made in reliance upon Section 6.04(i), in each case to the extent made during the Covenant Relief Period, shall not exceed the amount of such Investment (as determined above) at the time such Investment was made);greater of
Appears in 1 contract
Samples: Credit Agreement (Fathom Digital Manufacturing Corp)
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 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 Borrowers in the Equity Interests of the Subsidiaries, in each case existing on the date hereof, and additional investments in the Equity Interests of Subsidiary Guarantors and the Canadian Borrower; provided that (i) any such Equity Interests held by a Loan Party shall be pledged pursuant to a Pledge Agreement (subject to the limitations applicable to voting Equity Interests of a Foreign Subsidiary referred to in Section 4.02(f)) and (ii) 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 U.S. $5,000,000 at any time outstanding;
(2b) Permitted Investments;
(c) accounts receivable owing to the Borrowers or any of the Subsidiaries arising from sales of inventory under usual and customary terms in the ordinary course of business;
(d) advances to directors, officers and employees of the Borrowers or any of the Subsidiaries to meet expenses incurred by such directors, officers and employees in the ordinary course of business, in an aggregate amount not to exceed U.S.$2,000,000 at any time outstanding;
(e) securities of any customer of a Borrower or any Subsidiary received in lieu of cash payment, if such Borrower reasonably deems such customer to be in a reorganization or unable to make a timely cash payment on Indebtedness of such customer owing to it, provided that such Borrower or such Subsidiary, as the case may be, has paid no new consideration (other than forgiveness of Indebtedness) therefor;
(f) any Subsidiary may make intercompany loans to a Borrower or any Subsidiary Guarantor and each Borrower may make intercompany loans and advances to officers, directors, employees or consultants of any Parent Entity, the other Borrower or any Restricted Subsidiary not Guarantor; provided that (i) no Loan Party may make loans to exceed $15.0 million any Foreign Subsidiaries (other than the Canadian Borrower and the Canadian Subsidiaries) pursuant to this paragraph (f) and (ii) the obligations arising under any intercompany loans made to a Loan Party pursuant to this paragraph (f) shall be subordinated to the Obligations of the Loan Parties pursuant to subordination provisions in an substantially the form of Exhibit J;
(g) the Loan Parties may make loans and advances to Foreign Subsidiaries so long as the aggregate principal amount of any loans and, advances at any time outstanding 86 80 (calculated determined without regard to any write-downs or write-offs thereof after the date made)thereof) pursuant to this paragraph (g) shall not exceed U.S.$5,000,000;
(3h) Investments the Borrower may enter into Hedging Agreements to the extent permitted by Section 6.14;
(i) the U.S. Borrower or any wholly owned Domestic Subsidiary or wholly owned Canadian Subsidiary may acquire all or substantially all the assets of a person or line of business of such person primarily located in an amount the United States or Canada, or not to exceed the Available Amount as less than 100% of the date such Investments are madeEquity Interests of a person that would become a wholly owned Domestic Subsidiary or a wholly owned Canadian Subsidiary (in each case 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 U.S. Borrower or any Subsidiary; (ii) the Acquired Entity shall be a going concern and shall be in a similar line of business as that of the Borrower and the Subsidiaries; (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 be continuing; (B) the Borrowers would be in compliance with the covenants set forth in Sections 6.10, 6.11, 6.12 and 6.13 as of the most recently completed period of four consecutive fiscal quarters ending prior to making such Investment transaction for which the financial statements and certificates required by Section 5.04(a) or 5.04(b) have been delivered or for which comparable financial statements have been filed with the Securities and Exchange Commission, after giving pro forma effect to such transaction and to any other event occurring during or after such period as to which pro forma recalculation is appropriate (including any Asset Sale and any other transaction described in this Section 6.04(i) occurring during or after such period) as if such transaction had occurred as of the first day of such period and (C) after giving effect to such acquisition, there must be at least U.S.$10,000,000 of the Total Commitment unused and available; (iv) the consideration for any such acquisition shall not exceed U.S.$25,000,000; and (v) for the period commencing on the Closing Date and ending with the third anniversary of the Closing Date, the aggregate consideration for all such acquisitions shall not exceed U.S.$75,000,000 (any acquisition of an Acquired Entity meeting all the criteria of this Section 6.04(i) being referred to herein as a "Permitted Acquisition"). All pro forma calculations required to be made pursuant to this Section 6.04(i) shall (i) include only those adjustments that would result therefrombe permitted or required by Regulation S-X under the Securities Act of 1933, as amended and (ii) be certified to by a Financial Officer as having been prepared in good faith based upon reasonable assumptions;
(4j) Permitted Acquisitions the Borrowers and pre-existing Investments held by Persons acquired the Subsidiaries may consummate the Transactions and the U.S. Borrower may issue shares of its common stock in Permitted Acquisitions or acquired in connection with Permitted Acquisitionsexchange for the Exchangeable Shares of PTI Holdco;
(5k) intercompany Investments among investments existing on the Borrower date hereof and set forth on Schedule 6.04;
(l) investments consisting of non-cash proceeds of Asset Sales for which the Restricted Subsidiaries consideration consists of at least 75% cash as required under Section 6.05; and
(including intercompany Indebtedness); provided that the sum of (am) the aggregate fair market value of all such Investments other investments, loans and advances (other than intercompany Indebtedness investments in and Guarantees of Indebtednessloans and advances to Foreign Subsidiaries) made since the Closing Date in an aggregate amount (with all such Investments being valued at their original fair market value and without taking into account subsequent increases cost or decreases in valueoutstanding principal amount, as the case may be) 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 greater than U.S.$10,000,000 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
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 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 84 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 85 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
Samples: Term Loan Agreement (Anywhere Real Estate Group LLC)
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 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 ClosingSecond Amendment Effective 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 ofwith respect to Investments by the Company and its Restricted Subsidiaries in Designated Restricted Entities pursuant to this clause (d) after the Closing Date, (i) the aggregate outstanding amount of such Investments, 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 (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 million 300,000,000 and (y) 15.0% of Borrower Group EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of Investment and (ii) 0.50% until the later of Consolidated (x) the Covenant Relief Period Termination Date and (y) the first date on which the Rent-Adjusted Total Assets Net Leverage Ratio is equal to or less than 6.00 to 1.00 calculated on a Pro Forma Basis as of the date any end of the most recently ended Test Period, such Investment is madeInvestments may only be made in connection with intercompany loans and/or advances arising from cash management, plus an amount equal tax and accounting operations and activities (and related operations and activities) in the ordinary course of business;
(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 the extent reasonably necessary in order to prevent or limit loss and (iii) Investments in securities of trade creditors or customers received pursuant to any returns plan of capital reorganization or sale proceeds actually received in respect of any such Investments (which such amount shall not exceed similar arrangement upon the amount bankruptcy or insolvency of such Investment trade creditors or customers or in settlement of delinquent or overdue accounts in the ordinary course of business;
(as determined abovef) at 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 time such Investment was madeBellagio Tax Protection Agreement and the MGP XXXXX XX Tax Protection Agreement;
(g) Investments in Swap Contracts permitted under Section 8.04(b);
Appears in 1 contract
