Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances to, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, that: (a) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments; (i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party: (c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower; (d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors; (e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; (f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met; (g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business; (h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12; (i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount; (j) [reserved]; (k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; (l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10; (m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and (n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period.
Appears in 4 contracts
Samples: Credit Agreement (E.W. SCRIPPS Co), Credit Agreement (E.W. SCRIPPS Co), Credit Agreement (E.W. SCRIPPS Co)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Third Amendment Closing Effective Date and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guarantees constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) Investments made by the Borrower in or to any Subsidiary Loan Party and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsa Subsidiary Loan Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate amount not to exceed $15,000,000 of all such loans and advances at any time outstanding does not exceed the greater of (x) $5,000,000 and (y) 2% of LTM Consolidated EBITDA (as of the date of the making of such Investment);
(f) repurchases of shares of Capital Stock of, and options, warrants, or other rights to purchase shares of Capital Stock to purchase shares of Capital Stock of, the Borrower or any Excluded JV (which in the case of any Excluded JV, shall be a repurchase from a minority owner of such Excluded JV), and provided, that for the purpose of this clause (f) at the time such repurchase is made and after giving effect thereto (i) no Default or Event of Default has occurred and is continuing nor would occur and (ii) the Borrower would be in compliance with the financial covenants contained in Article 6 (other than Section 6.3) on a pro forma basis;
(g) (i) Permitted Acquisitions and xxxxxxx money deposits in connection therewith and (ii) Investments made by any Person existing at the time such Person becomes a Subsidiary or consolidates, amalgamates or merges with the Borrower or any of its Subsidiaries in connection with a Permitted Acquisition or other Investment permitted hereunder, so long as such Investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation, amalgamation or merger;
(h) Hedging Transactions other than Hedging Transactions entered into in the ordinary course of business to hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct of its business or the management of its liabilities, including any such obligation which is a forward equity commitment or confirmation or forward equity sale agreement to the extent the terms thereof provide that the obligation can be satisfied by the issuance of Capital Stock;
(i) Investments consisting of deposits, expense prepayments, extensions of credit in the nature of accounts receivable arisingor notes receivable arising from the grant of trade credit in the ordinary course of business, trade debt granted and Investments received (x) in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and (y) in connection with the bankruptcy or reorganization of suppliers and customers and in good faith settlement of delinquent obligations of, and other credits extended to disputes with, customers and similar Persons suppliers arising in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved]Investments consisting of receivables and notes received from students in the ordinary course of business;
(k) the Torrens Acquisition and the Investments by of Torrens and its Subsidiaries existing on the Borrower or any Restricted Subsidiary Third Amendment Effective Date, so long as such Investments were not made in contemplation of Torrens and its Subsidiaries becoming Subsidiaries of the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodBorrower;
(l) the Capella Acquisition and the Investments arising in Capella Education Company and its Subsidiaries existing on the Second Amendment Effective Date, so long as a result such Investments were not made in contemplation of Hedge Agreements permitted pursuant to Section 7.10Capella Education Company and its Subsidiaries becoming Subsidiaries of the Borrower;
(m) Investments in joint ventures Excluded Subsidiaries in an aggregate amount not to exceed at exceed, in any time Fiscal Year, the greater of (x) $25,000,000 50,000,000 and (y) 7.515% of LTM Consolidated EBITDA calculated (as of the date of the making of such Investment);
(n) other Investments (including, without limitation, Investments in Excluded Subsidiaries) so long as, on a Pro Forma Basis for pro forma basis after giving effect to such Investments and assuming that such Investments were consummated on the then first day of the most recently ended Test Periodperiod of four consecutive Fiscal Quarters, the pro forma Leverage Ratio shall not be greater than 1.75 to 1; and
(no) other Investments which in Unrestricted Subsidiaries the aggregate do not exceed, in an aggregate amount not to exceed at any time Fiscal Year, the greater of (x) $25,000,000 50,000,000 and (y) 7.515% of LTM Consolidated EBITDA calculated on a Pro Forma Basis for (as of the then most recently ended Test Perioddate of the making of such Investment).
Appears in 3 contracts
Samples: Revolving Credit and Term Loan Agreement (Strategic Education, Inc.), Revolving Credit and Term Loan Agreement (Strategic Education, Inc.), Revolving Credit and Term Loan Agreement (Strategic Education, Inc.)
Investments, Loans, Etc. The No Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness indebtedness, Capital Stock or other equity interests or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Personunit, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted InvestmentsCash Equivalents;
(ib) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale Travel advances or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) advances in an aggregate amount not to exceed in aggregate amount for all Borrowers of $100,000 at any one time outstanding, which are made to any employee of a Borrower in the greater ordinary course of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodsuch Borrower’s business;
(fc) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Hedging Agreements entered into in the ordinary course of business for travel, entertainment, relocation and related expenses to hedge or mitigate risks to which a Borrower is exposed in an aggregate amount not to exceed $15,000,000 at any time and the conduct of its business or the management of its liabilities;
(iid) Investments consisting in deposit accounts in which the Administrative Agent has been granted a security interest under the Loan Documents;
(e) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of depositssuppliers and customers and in settlement of delinquent obligations of, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to disputes with customers and similar Persons suppliers arising in the ordinary course of business;
(f) Receivables owing to a Borrower created or acquired in the ordinary course of business and payable on customary trade terms of such Borrower;
(g) Other Investments so long as the aggregate amount thereof (determined as the amount originally advanced, loaned or otherwise invested (without giving effect to any write-downs or write-offs thereof), less any realized returns on the respective investment not to exceed the original amount invested) at no time outstanding exceeds $250,000 in the aggregate for all Borrowers;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;Existing Investments described on Schedule 6.8; and
(i) without duplication of any Investments in new Subsidiaries, other clause than a CFC, which become Borrowers in accordance with the terms of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodAgreement.
Appears in 3 contracts
Samples: Loan and Security Agreement (Global Defense Technology & Systems, Inc.), Loan and Security Agreement (Global Defense Technology & Systems, Inc.), Loan and Security Agreement (Global Defense Technology & Systems, Inc.)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Investments of a Person Loan Party shall be subject to the limitation set forth in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerclause (d) hereof;
(d) Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with or to another Subsidiary; provided, that the settlement aggregate amount of obligations owing to it Investments by financially troubled debtorsLoan Parties in or to, and Guarantees by Loan Parties of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party (including all such Investments and Guarantees existing on the Closing Date) shall not exceed $10,000,000 at any time outstanding;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 10,000,000 at any time time;
(f) Hedging Transactions permitted by Section 7.10;
(g) the acquisition of the pest control business operations, commonly known as HomeTeam Pest Defense, of HomeTeam Pest Defense, LLC, HomeTeam Pest Defense, Inc. and (ii) Investments consisting their respective subsidiaries in accordance with the terms of depositsthat certain Asset Purchase Agreement by and between Xxxxxxx XX, expense prepaymentsInc., accounts receivable arisingCentex Home Services, trade debt granted LLC, HomeTeam Pest Defense Inc. and other credits extended to customers and similar Persons in the ordinary course of businessHomeTeam Pest Defense, LLC, dated on or about March 28, 2008;
(h) a Restricted Subsidiary of Other Investments which in the Borrower may be established or created (but aggregate do not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12exceed $30,000,000 in any Fiscal Year;
(i) without duplication of any other clause of this to the extent permitted by Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment7.5, the Borrower’s redemption or purchase of the Borrower’s common stock pursuant to any open-market stock repurchase program implemented by the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amountfrom time-to-time;
(j) [reserved]to the extent permitted by Section 7.5, the Borrower’s redemption or purchase of the Borrower’s common stock from employees in connection with any equity compensation plan implemented by the Borrower from time-to-time;
(k) Investments made in or to any Person to finance the purchase by such Person of a franchise from the Borrower or any Restricted Subsidiary which in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall do not exceed at $10,000,000 in any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodFiscal Year;
(l) Investments arising as a result made in or to any customer of Hedge Agreements permitted pursuant the Borrower or any Subsidiary to Section 7.10finance any such customer’s purchase of termite or similar bonds which in the aggregate do not exceed $25,000,000 in any Fiscal Year;
(m) Investments in joint ventures in an the purchase of customer contracts; provided, that such purchases are limited solely to customer contracts and the aggregate amount purchase price paid for such customer contracts does not to exceed at $15,000,000 in any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodFiscal Year; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not comprised of obligations of the Borrower or any Subsidiary to exceed pay deferred employment compensation, provided, that any such obligations are, at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodall times, fully funded.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Rollins Inc), Revolving Credit Agreement (Rollins Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person(“Acquisitions”), or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower date hereof and its Restricted Subsidiaries may make and hold set forth on Schedule 7.4;
(b) Permitted Investments;
(ic) Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the Borrower and its Restricted aggregate principal amount of Indebtedness of Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) that are not Subsidiary Loan Parties that is Guaranteed by any Loan Party may make Investments shall be subject to the limitation set forth in any other Loan Party:
clause (cd) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerhereof;
(d) Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsanother Subsidiary;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and expenses;
(iif) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Hedging Agreements permitted by Section 7.10;
(g) Joint ventures that are typical in the Borrower’s ordinary course of business;
(h) a Restricted Subsidiary Other Investments which in the aggregate do not exceed $5,000,000.00 in any fiscal year of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;Borrower; and
(i) without duplication Acquisitions not to exceed in the aggregate in any fiscal year of any other clause the Borrower 20% of this Section 7.4, so long as the Available Amount Conditions are satisfied Consolidated Net Worth (measured at the time end of such Investmentthe immediately preceding fiscal year); provided that Acquisitions in the aggregate in any fiscal year of the Borrower in excess of 20% of Consolidated Net Worth (measured at the end of the immediately preceding fiscal year) may be made after delivery to the Lender of pro forma consolidated financial statements, certified by the Borrower and its Restricted Subsidiaries may make Investments reasonably acceptable to the Lender, showing that after giving effect to such Acquisitions (i) Borrower shall remain in an amount not to exceed compliance with the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary financial covenants set forth in the Borrower or any Restricted Subsidiary; providedArticle 6 hereof on a pro forma basis, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (yii) 7.5% no Default or Event of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodDefault would exist.
Appears in 2 contracts
Samples: Credit Agreement (Patriot Transportation Holding, Inc.), Credit Agreement (New Patriot Transportation Holding, Inc.)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock of any Person, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments subject to Control Agreements in favor of the Administrative Agent for the benefit of the Lenders or otherwise subject to a first priority perfected security interest in favor of the Administrative Agent for the benefit of the Lenders;
(c) Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Investments of a Person Loan Party shall be subject to the limitation set forth in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerclause (d) hereof;
(d) Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with or to another Subsidiary; provided, that (i) any Capital Stock of any Subsidiary held by any Loan Party shall be pledged pursuant to a Pledge Agreement (subject, in the settlement case of obligations owing any Foreign Subsidiary, to it the limitations set forth in Section 5.12(b)) and (ii) the aggregate amount of Investments by financially troubled debtorsLoan Parties in or to, and Guarantees by Loan Parties of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party (including all such Investments and Guarantees existing on the Closing Date) shall not exceed $5,000,000 at any time outstanding;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount otherwise not to exceed $15,000,000 at any time and 100,000;
(iif) Hedging Transactions permitted by Section 7.10;
(g) the Acquisition;
(h) Investments consisting of depositspromissory notes received as proceeds of asset dispositions permitted by Section 7.6;
(i) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to disputes with, customers and similar Persons suppliers arising in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments any prepaid royalties or advanced commissions paid by the Borrower or any Restricted Subsidiary in the Borrower or to any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodPerson; and
(nk) other Investments which in Unrestricted Subsidiaries the aggregate do not exceed $2,000,000 in an the aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Mapics Inc), Revolving Credit and Term Loan Agreement (Mapics Inc)
Investments, Loans, Etc. The Borrower Sponsor will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-wholly owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guaranty any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower date hereof and its Restricted Subsidiaries may make and hold set forth on Schedule 6.17 (including Investments in Subsidiaries);
(b) Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guaranties constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 6.14;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received made by any Credit Party in connection with a sale or to any other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtorsCredit Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower Sponsor or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and expenses;
(iif) Hedging Agreements permitted by Section 6.23; and
(g) Investments consisting in franchise operators through the Franchise Partner Program; and
(h) Investments received in settlement of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Indebtedness created in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication Investments in the stock or other assets of any other clause of this Person that is engaged in a business permitted by Section 7.46.17(b) that, so long as the Available Amount Conditions are satisfied at the time a result of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
becomes a Subsidiary of Sponsor (j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiaryother than Hostile Acquisitions); provided, however however, that the aggregate amount purchase price of Investments made pursuant to this clause subsection (ki) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time fifteen percent (15%) of the greater Consolidated Net Worth of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA the Sponsor as calculated on a Pro Forma Basis the last day of Fiscal Quarter for which the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted Sponsor has delivered, or is required to have delivered, financial statements to the Participants pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodthis Agreement; and
(nj) Investments in Unrestricted Subsidiaries in an aggregate amount common stock of the Sponsor to the extent permitted under Section 6.17. Investments under Section 6.17 shall not be permitted if, before or after giving effect to exceed at any time the greater making of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on such Investment, a Pro Forma Basis for the then most recently ended Test PeriodCredit Event or Unmatured Credit Event has occurred or is continuing.
Appears in 2 contracts
Samples: Loan Facility Agreement (Ruby Tuesday Inc), Loan Facility Agreement (Ruby Tuesday Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the date hereof and set forth on Schedule 7.4 (including Investments in Subsidiaries);
(b) Permitted Investments and cash so long as, with respect to the Borrower or any Subsidiary Loan Party, all such investments are maintained in a securities intermediary account which is maintained with the Administrative Agent or is otherwise subject to a Control Account Agreement or otherwise deposited in a deposit account in accordance with Section 5.11;
(c) Guarantees constituting Indebtedness permitted by Section 7.1;
(d) investments made by the Borrower and its Restricted Subsidiaries may make and hold in readily marketable securities, including Indebtedness or preferred stock, rated “BBB” or higher from Standard & Poor’s Rating Services or “Baa3” or higher from Xxxxx’x Investors Service, Inc., money market funds at least 95% of which constitute Permitted Investments;
Investments of the kinds described clauses (i) through (v) in the definition thereof, readily marketable securities and other liquid investments in diversified and publicly quoted mutual funds managed by nationally recognized investment firms; provided that (i) upon any such investment, the Borrower and or its Restricted Subsidiaries may hold no more than 1% of the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and aggregate amount invested in any such fund, (ii) any Loan Party if outstanding Loans is greater than $1 and/or outstanding Letters of Credit exceed $15,000,000, such investments may make Investments not exceed (A) $50,000,000 when the Leverage Ratio is greater than or equal to 2.0:1.0 and (B) $75,000,000 when the Leverage Ratio is less than 2.0:1.0 and (iii) all such investments are maintained in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes securities intermediary account which is subject to a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtorsControl Account Agreement;
(e) other investments made Borrower into Investco and by Investco at any time when it is an Unrestricted Subsidiary, in an amount not to exceed $10,000,000 so long as all such investments are maintained with the Administrative Agent or in a securities intermediary account which is subject to a Control Account Agreement;
(f) Borrower and any Subsidiary (other than Investco) may acquire assets (including Capital Stock and Capital Stock of any wholly-owned Subsidiary formed in connection with any such acquisition, in each case, so long as such purchase of Capital Stock results in the formation of a wholly-owned Subsidiary); provided, that (a) no Default or Event of Default has shall have occurred and is be continuing or on the date thereof, nor would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and (b) after giving effect thereto on a Pro Forma Basis Borrower’s Leverage Ratio shall be at least 0.25:1.0 less than Leverage Ratio contained in Article VI for the then most recently ended Test Period, recent full Fiscal Quarter immediately preceding such date for which the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment relevant financial information has been delivered pursuant to this clause Section 5.1(a) and (fb); provided, the further that Borrower shall, and shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying cause its Subsidiaries to, comply with the requirements of this clause (f) have been metSection 5.12 with respect to each such acquisition that results in a Person becoming a Subsidiary;
(g) so long as no Default or Event Borrower and any Subsidiary of Default has occurred and is continuing or would result therefromBorrower (other than Investco) may make additional Investments in their respective Foreign Subsidiaries, provided that, the Borrower and its Restricted amount of all such Investments constituting equity Investments together with the amount of all intercompany Indebtedness owing by all Foreign Subsidiaries may make permitted under Section 7.1(d) does not exceed $100,000,000 in the aggregate at any one time outstanding;
(ih) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time expenses;
(i) Borrower and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons its Subsidiaries may acquire Capital Stock in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower business and such Restricted Subsidiary comply consistent with past practices in connection with the provisions satisfaction or enforcement of Section 5.12;
(i) without duplication of Indebtedness or claims due or owing to Borrower or such Subsidiary or as security for any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available AmountIndebtedness or claim;
(j) [reserved]Hedging Transactions permitted by Section 7.10;
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that Real Estate Subsidiaries not to exceed $25,000,000 in the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;outstanding; and
(l) Other Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments which in joint ventures the aggregate do not exceed $5,000,000 in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodFiscal Year.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Newmarket Corp), Revolving Credit Agreement (Newmarket Corp)
Investments, Loans, Etc. The Borrower will notAt any time, and will not permit any of its Restricted Subsidiaries to, purchasepurchase or otherwise acquire, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of invest in the foregoing) Stock of, make any loans or advances to, or make any investment or any other interest in, any other Person, or purchase make any loan or otherwise acquire (advance to, or enter into any arrangement for the purpose of acquiring, holding or investing in one transaction or a series of transactions) any assets of loaning or advancing to, or make any other Person that constitute a business unit investment, whether by way of capital contribution, time deposit or division of such another otherwise, in or with any Person, or purchase or acquire all or substantially all permit any Subsidiary of the assets of another PersonBorrower so to do, or create or form any Restricted Subsidiary (all of the foregoing being collectively called which are sometimes referred to herein as “Investments”, it being understood, without limitation, that the provision by Borrower or any Subsidiary of guarantees and/or letters of credit to other Persons shall not constitute Investments but shall instead constitute Indebtedness) other than Investments constituting Permitted Acquisitions except the following (including, for to the avoidance extent that maintaining any thereof would not at any time violate the requirements of doubt, Section 856(c) of the Taurus Acquisition); provided, that:Code):
(a) demand deposits, certificates of deposit, bankers acceptances and domestic and eurodollar time deposits with any Lender, or any other commercial bank, trust company or national banking association incorporated under the Borrower laws of the United States or any State thereof and its Restricted Subsidiaries may make having undivided capital, surplus and hold Permitted Investmentsundivided profits exceeding $500,000,000 and a long term debt rating of A or A2, as determined, respectively, by S&P and Xxxxx’x;
(b) short-term direct obligations of the United States of America or agencies thereof whose obligations are guaranteed by the United States of America;
(c) securities commonly known as “commercial paper” issued by a corporation organized and existing under the laws of the United States or any State thereof which at the time of purchase are rated by S&P or Xxxxx’x at not less than “A1” or “P1,” respectively;
(d) mortgage-backed securities guaranteed by the Governmental National Mortgage Association, the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation and other mortgage-backed bonds which at the time of purchase are rated by S&P or Xxxxx’x at not less than “Aa” or “AA,” respectively;
(e) repurchase agreements having a term not greater than 90 days and fully secured by securities described in the foregoing paragraph (b) or (d) with banks described in the foregoing paragraph (a) or with financial institutions or other corporations having total assets in excess of $50,000,000;
(f) shares of “money market funds” registered with the SEC under the Investment Company Act of 1940 which maintain a level per-share value, invest principally in the investments described in one or more of the foregoing paragraphs (a) through (e) and have total assets of in excess of $50,000,000;
(g) Real Property;
(h) Subject to Section 8.17, equity investments in any Person (other than Subsidiaries) and Notes Receivable investments;
(i) the Borrower and its Restricted Subject to Section 8.17, Investments (debt or equity) in Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(dj) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received investments in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater respect of (x1) $120,000,000 equipment, inventory and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default other tangible personal property or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries intangible property acquired in the ordinary course of business business, (2) current trade and customer accounts receivable for travelservices rendered in the ordinary course of business, entertainment(3) advances to employees for travel expenses other company-related expenses, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii4) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons prepaid expenses made in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or Hedging Agreements made in connection with any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodIndebtedness;
(l) Investments arising repurchases of any common or preferred stock or other equity interests (or securities convertible into such interests) in the Borrower that have been previously issued by the Borrower which do not exceed, in any calendar year, (1) 10% of the aggregate outstanding shares of common and preferred stock and other equity interests in Borrower as a result of Hedge Agreements permitted pursuant to Section 7.10the date hereof, in any combination, plus (2) 10% of the aggregate of any additional shares of common and preferred stock and other equity interests in Borrower issued after the date hereof, in any combination;
(m) Investments redemptions of preferred stock of the Borrower in joint ventures accordance with the terms thereof;
(n) redemptions for cash or common Stock of the Borrower of units of limited partner interests or limited liability company interests in an a DownREIT Partnership;
(o) loans or advances to employees of the Borrower, provided that all such loans in the aggregate amount do not to exceed at any time the greater of (x) exceed $25,000,000 and in the aggregate;
(yp) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodCapital Leases; and
(nq) subject to Section 8.17, any other Investments not included in Unrestricted Subsidiaries paragraphs (a) through (p) deemed appropriate by the Borrower (provided that in an aggregate amount not to no event shall Investments made in reliance upon the exception set forth in this paragraph (q) exceed at $75,000,000 in any time the greater fiscal year of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodBorrower).
Appears in 2 contracts
Samples: Revolving Credit Agreement (New Plan Excel Realty Trust Inc), Secured Term Loan Agreement (New Plan Excel Realty Trust Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 (including Investments in Subsidiaries); and (ii) provided that, notwithstanding anything to the contrary contained in this Agreement, the Borrower shall not, and shall not permit any Subsidiary Loan Party may to, make any further Investments in any other Loan Party:PEI;
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guarantees constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) Investments made by the Borrower in or to any Subsidiary Loan Party and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsa Subsidiary Loan Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 1,000,000 at any time;
(f) repurchases of shares of Capital Stock and options to purchase shares of Capital Stock of the Borrower, and provided, that for the purpose of this clause (f) at the time such repurchase is made and after giving effect thereto (i) no Default or Event of Default has occurred and is continuing nor would occur and (ii) the Borrower would be in compliance with the financial covenants contained in Article 6 (other than that contained in Section 6.4 with respect to Consolidated Tangible Net Worth) on a pro forma basis;
(g) Permitted Acquisitions;
(h) Hedging Transactions permitted by Section 7.10;
(i) Investments consisting of deposits, expense prepayments, extensions of credit in the nature of accounts receivable arising, or notes receivable arising from the grant of trade debt granted and other credits extended to customers and similar Persons credit in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established , and Investments received in satisfaction or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, partial satisfaction thereof from financially troubled account debtors to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments reasonably necessary in an amount not order to exceed the Available Amountprevent or limit loss;
(j) [reserved];Investments consisting of receivables and notes received from students in the ordinary course of business; and
(k) Other Investments by the Borrower or any Restricted Subsidiary which in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall do not exceed at $5,000,000 in any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodFiscal Year.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Strayer Education Inc), Revolving Credit Agreement (Strayer Education Inc)
Investments, Loans, Etc. The Borrower Holdings will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Restricted Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerPermitted Acquisitions;
(d) Investments made by the Borrower in or to any Subsidiary Guarantor and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary Guarantor to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsanother Subsidiary Guarantor;
(e) so long as loans or advances to employees, officers, stockholders or directors of the Borrower or any Restricted Subsidiary in the ordinary course of business; provided, however, that the aggregate amount of all such loans and advances does not exceed $2,000,000 at any time outstanding;
(f) loans to franchise operators and owners of franchises acquired or funded pursuant to the Loan Facility Agreement and the other credit facility agreements referenced in Section 7.1(f);
(g) Guarantees permitted under Section 7.1(f);
(h) the acquisition or ownership of stock, obligations or securities received in settlement of debts (created in the ordinary course of business) owing to any Subsidiary Loan Party or any of their Restricted Subsidiaries;
(i) loans to and other investments in Foreign Subsidiaries that are Restricted Subsidiaries; provided that, the aggregate amount of such outstanding loans to and investments in such Foreign Subsidiaries do not exceed the amount permitted under Section 7.1(i);
(j) Investments in investment grade corporate bonds and variable rate demand notes having a rating of BBB+ (or the equivalent) or higher, at the time of acquisition thereof, from S&P or Xxxxx’x and in either case maturing within two years from the date of acquisition thereof in an aggregate amount not to exceed $100,000,000 at any time;
(k) other Investments (other than Investments in Unrestricted Subsidiaries); provided, that, (i) no Default or Event of Default has occurred and is continuing or would result therefromtherefrom and (ii) after giving effect to the payment thereof on a Pro Forma Basis, Holdings, the Borrower and its Restricted Subsidiaries may make would be in compliance with the financial covenants in Article VI measured as of the last day of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered hereunder;
(l) other Investments (and, thereafter, may hold such Investmentsother than Investments in Unrestricted Subsidiaries) in an aggregate amount not to exceed $50,000,000 at any time; and
(m) other Investments not to exceed, as of any date of determination, an amount equal to three percent (3.0%) of the greater aggregate book value of (x) $120,000,000 the total assets of Holdings, the Borrower and (y) 33.0% of Consolidated EBITDA calculated its Restricted Subsidiaries determined on a Pro Forma Basis for consolidated basis as of the then last day of the most recently ended Test Period;
Fiscal Quarter for which financial statements have been delivered; provided, that, (fi) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, therefrom and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and (ii) after giving effect thereto to the payment thereof on a Pro Forma Basis for the then most recently ended Test PeriodBasis, Holdings, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), would be in compliance with the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth financial covenants in reasonable detail the calculations Article VI measured as of the Total Net Leverage Ratio and executed by a Responsible Officer last day of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant Fiscal Quarter for which financial statements are required to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodhave been delivered hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Aaron's Company, Inc.), Credit Agreement (Aaron's Company, Inc.)
Investments, Loans, Etc. The Borrower Sponsor will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-wholly owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guaranty any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Effective Date and set forth on Schedule 7.4 6.17 (including Investments in Subsidiaries);
(b) Permitted Investments;
(c) Guaranties of Indebtedness under (i) the Revolving Facility and (ii) other Indebtedness in an amount not to exceed $10,000,000 in the aggregate at any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the one time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borroweroutstanding;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received made by any Credit Party in connection with a sale or to any other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;Credit Party; CHAR1\1054915v3
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower Sponsor or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses expenses;
(f) Hedging Agreements permitted by Section 6.23;
(g) Investments in an aggregate amount franchise operators through the Franchise Partner Program; provided, that such Investments made pursuant to this subsection (g) together with Investments made pursuant to subsection (h) below shall not to exceed $15,000,000 10,000,000 in the aggregate at any one time and outstanding;
(iih) Investments consisting in franchise operators through the Traditional Franchisee program pursuant to the purchase option agreements entered into with those operators; provided, that such Investments made pursuant to this subsection (h) together with Investments made pursuant to subsection (g) above shall not exceed $10,000,000 in the aggregate at any one time outstanding;
(i) Investments received in settlement of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Indebtedness created in the ordinary course of business;
(hj) Acquisitions by any Credit Party meeting the following requirements (each such Acquisition constituting a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;“Permitted Acquisition”):
(i) without duplication as of the date of the consummation of such Acquisition, no Credit Event or Unmatured Credit Event shall have occurred and be continuing or would result from such Acquisition, and the representations and warranties contained herein shall be true both before and after giving effect to such Acquisition;
(ii) such Acquisition is consummated on a non-hostile basis pursuant to a negotiated acquisition agreement approved by the board of directors or other applicable governing body of the seller or entity to be acquired, and no material challenge to such Acquisition shall be pending or threatened by any other clause shareholder or director of this Section 7.4the seller or entity to be acquired;
(iii) the business to be acquired in such Acquisition is similar or related to one or more of the lines of business in which the Sponsor and its Subsidiaries are engaged on the Closing Date;
(iv) as of the date of consummation of such Acquisition, all material approvals required in connection therewith shall have been obtained;
(v) after giving effect to such Acquisition, the aggregate consideration (including cash and non-cash consideration, any assumption of Indebtedness, deferred purchase price and any earn-out obligations) paid for all Acquisitions in any fiscal year shall not exceed $35,000,000; provided, however, if subsequent to the Fourth Amendment Effective Date, the Adjusted Total Debt to EBITDAR Ratio is less than 3.0 to 1.0 as of the last day of two consecutive Fiscal Quarters, the annual basket provided for above shall no longer apply so long as (A) the Available Amount Conditions are satisfied at Adjusted Total Debt to EBITDAR Ratio on a Pro Forma Basis after giving effect to any such Acquisition is less than 3.0 to 1.0 and (B) in the time CHAR1\1054915v3 case where after giving effect to any such Acquisition, the aggregate consideration paid for all Acquisitions in the applicable fiscal year exceeds $5,000,000 the Sponsor shall have delivered to the Servicer not less than five (5) days prior to the consummation of such InvestmentAcquisition a pro form compliance certificate demonstrating that the Adjusted Total Debt to EBITDAR Ratio on a Pro Form Basis (after giving effect to any such Acquisition and all extensions of credit funded in connection therewith as if made on the first day of the applicable period) is less than 3.0 to 1.0; and
(vi) in the case where after giving effect to any Acquisition, the Borrower aggregate consideration for all Acquisitions occurring in the applicable fiscal year is greater than $5,000,000, not less than five (5) days prior to the consummation of such Acquisition, the Sponsor shall have delivered to the Servicer, a pro forma compliance certificate, which shall reflect that, on a Pro Forma Basis, the Sponsor would have been in compliance with the financial covenants set forth in Article VI for the four fiscal quarter period reflected in the compliance certificate most recently delivered to the Servicer pursuant to Section 6.1(c) prior to the consummation of such Acquisition (giving effect to such Acquisition and its Restricted Subsidiaries may make Investments all extensions of credit funded in an amount not to exceed connection therewith as if made on the Available Amount;
(j) [reserved];first day of such period); and
(k) Investments by in common stock of the Borrower or any Restricted Subsidiary in Sponsor to the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of extent permitted under Section 6.18. Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties under Section 6.17 shall not exceed at any time be permitted if, before or after giving effect to the greater making of (x) $25,000,000 such Investment, a Credit Event or Unmatured Credit Event has occurred and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;is continuing.
(lv) Investments arising Section 6.18 of the Loan Facility Agreement is hereby amended to read as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period.follows:
Appears in 2 contracts
Samples: Loan Facility Agreement and Guaranty (Ruby Tuesday Inc), Loan Facility Agreement and Guaranty (Ruby Tuesday Inc)
Investments, Loans, Etc. The Borrower will notMake, and will not permit or hold any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to Investments in any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances to, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) hold any assets of any Subsidiaries, other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatthan:
(a) Investments in Subsidiaries that are Guarantors under this Agreement, whether such Subsidiaries are Guarantors on the Borrower Closing Date or become Guarantors in accordance with Section 6.10 after the Closing Date; provided, however, nothing in this Section 7.04 shall be deemed to authorize an investment pursuant to this subsection (a) in any entity that is not a Subsidiary and its Restricted Subsidiaries may make and hold Permitted Investmentsa Guarantor prior to such investment;
(ib) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any Subsidiaries, other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided than those Subsidiaries that such Investments were not made in connection with are or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale become Guarantors under this Agreement, or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrompersons that thereafter become Subsidiaries, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended 25,000,000 unless otherwise consented to customers and similar Persons in writing by the ordinary course of businessRequired Lenders;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(mc) Investments in joint ventures in an aggregate amount other Persons that are not, and do not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted become, Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 unless otherwise consented to in writing by the Required Lenders;
(d) direct obligations of the United States of America or any agency thereof, or obligations guaranteed by the United States of America or any agency thereof, in each case supported by the full faith and credit of the United States of America and maturing within one year from the date of creation thereof;
(ye) 7.5% commercial paper maturing within one year from the date of Consolidated EBITDA calculated creation thereof rated in the highest grade by a nationally recognized credit rating agency;
(f) time deposits maturing within one year from the date of creation thereof with, including certificates of deposit issued by any Lender and any office located in the United States of America of any bank or trust company which is organized under the laws of the United States of America or any state thereof and has total assets aggregating at least $500,000,000, including without limitation, any such deposits in Eurodollars issued by a foreign branch of any such bank or trust company;
(g) Investments made by Plans; and
(h) permitted Intercompany Loans on a Pro Forma Basis for terms and conditions acceptable to the then most recently ended Test PeriodAdministrative Agent.
Appears in 2 contracts
Samples: Line of Credit Agreement (Hughes Supply Inc), Revolving Credit Agreement (Hughes Supply Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guarantees constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans Loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 1,000,000 at any time time;
(e) Accounts receivable or other indebtedness and extensions of trade credit which arose in the ordinary course of such Person’s business;
(iif) Investments consisting Prepaid expenses of deposits, expense prepayments, accounts receivable arising, trade debt granted such Person incurred and other credits extended to customers and similar Persons prepaid in the ordinary course of business;
(g) Endorsements of instruments for deposit or collection in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise Hedging Transactions permitted under this by Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.127.9;
(i) without duplication of any other clause of this Investments permitted by Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;7.3(d); and
(j) [reserved];
(k) Investments by made as part of the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodGLGT Acquisition.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Tc Pipelines Lp), Revolving Credit and Term Loan Agreement (Tc Pipelines Lp)
Investments, Loans, Etc. The Borrower will notMake any Investment, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances to, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Cash Equivalents;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of Guarantees by the Borrower may be held or any Subsidiary constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) Investments made by Holdings in the Borrower, and the Borrower in or to any Subsidiary, and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with or to another Subsidiary; provided, that, the settlement aggregate amount of obligations owing to it Investments by financially troubled debtorsLoan Parties in or to, and Guarantees by Loan Parties of Indebtedness of any Subsidiary that is not a Guarantor (including all such Investments and Guarantees existing on the Effective Date) shall not exceed $500,000 at any time outstanding;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses expenses; provided, that, the aggregate amount of all such loans and advances does not exceed $250,000 in the aggregate at any time outstanding;
(f) Hedging Transactions permitted by Section 7.10;
(g) Permitted Acquisitions and any Investments assumed in connection with Permitted Acquisitions to the extent that such Investments were not made in contemplation of or in connection with such Permitted Acquisition and were in existence prior to the date of such Permitted Acquisition;
(h) Investments in joint ventures as required by VISN Arrangements in an aggregate amount not to exceed $15,000,000 5,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;outstanding; and
(i) without duplication Investments made solely from the Net Cash Proceeds from an issuance of Capital Stock; provided, that, such Net Cash Proceeds are (A) earmarked for such use, (B) are maintained in a segregated account until such time as they are used for any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, and (C) are used for an Investment within ninety (90) days after receipt thereof (or such later date as the Borrower and Administrative Agent may agree in its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;sole discretion); and
(j) [reserved];
(k) other Investments by the Borrower or any Restricted Subsidiary which in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall do not exceed $2,500,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding.
Appears in 2 contracts
Samples: Credit Agreement (Rotech Healthcare Holdings Inc.), Credit Agreement (Rotech Healthcare Holdings Inc.)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-wholly owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guaranty any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower date hereof and its Restricted Subsidiaries may make and hold set forth on Schedule 7.3 (including Investments in Subsidiaries);
(b) Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments Guaranties of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerIndebtedness;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received made by any Loan Party in connection with a sale or to any other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtorsLoan Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and expenses;
(iif) Hedging Agreements permitted by Section 7.8;
(g) Investments consisting in franchise operators through the Franchise Partner Program;
(h) Investments in franchise operators through the Traditional Franchisee program pursuant to the purchase option agreements entered into with those operators;
(i) Investments received in settlement of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Indebtedness created in the ordinary course of business;; CHAR1\935816v6
(hj) Acquisitions meeting the following requirements (each such Acquisition constituting a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;“Permitted Acquisition”):
(i) without duplication as of any other clause the date of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time consummation of such InvestmentAcquisition, no Default or Event of Default shall have occurred and be continuing or would result from such Acquisition, and the representations and warranties contained herein shall be true both before and after giving effect to such Acquisition;
(ii) such Acquisition is consummated on a non-hostile basis pursuant to a negotiated acquisition agreement approved by the board of directors or other applicable governing body of the seller or entity to be acquired, and no material challenge to such Acquisition shall be pending or threatened by any shareholder or director of the seller or entity to be acquired;
(iii) the business to be acquired in such Acquisition is similar or related to one or more of the lines of business in which the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed are engaged on the Available AmountClosing Date;
(jiv) [reserved];as of the date of consummation of such Acquisition, all material approvals required in connection therewith shall have been obtained; and
(v) in the case of any Acquisition where the aggregate consideration exceeds $75,000,000, not less than five (5) days prior to the consummation of such Acquisition, the Borrower shall have delivered to the Administrative Agent, a pro forma compliance certificate, which shall reflect that, on a Pro Forma Basis, the Borrower would have been in compliance with the financial covenants set forth in Article VI for the four fiscal quarter period reflected in the compliance certificate most recently delivered to the Administrative Agent pursuant to Section 5.1(c) prior to the consummation of such Acquisition (giving effect to such Acquisition and all extensions of credit funded in connection therewith as if made on the first day of such period); and
(k) Investments by in common stock of the Borrower or any Restricted Subsidiary in to the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of extent permitted under Section 7.4. Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties under Section 7.3 shall not exceed at any time be permitted if, before or after giving effect to the greater making of (x) $25,000,000 such Investment, a Default or an Event of Default has occurred and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodis continuing.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Ruby Tuesday Inc), Revolving Credit Agreement (Ruby Tuesday Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscapital stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of a Person, or any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another any other Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guarantees constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) Investments made by the Borrower in or to any Subsidiary Loan Party and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsanother Subsidiary Loan Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans Loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiaryexpenses; provided, however however, that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall all such loans and advances does not exceed $500,000 at any time time;
(f) Hedging Agreements permitted by Section 7.10; and
(g) Investments consisting of the greater Acquisition of assets of or equity interests in a Person provided: (xi) $25,000,000 and such Acquisition would not cause the Leverage Ratio or the Minimum Timber Market Value covenants (y) 7.5% of Consolidated EBITDA each calculated on a Pro Forma Basis for the then most recently ended Test Period;
taking into account such Acquisition) to be violated; (lii) Investments arising as a result no Default or Event of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 Default exists or would exist taking into account such Acquisition; and (yiii) 7.5% of Consolidated EBITDA calculated on the Administrative Agent has received prior to such Acquisition, a Pro Forma Basis for the then most recently ended Test Period; and
Compliance Certificate demonstrating compliance with clause (nii) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodthis subsection.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Deltic Timber Corp), Revolving Credit Agreement (Deltic Timber Corp)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) Guarantees by Borrower and its Subsidiaries constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Investments of a Person Loan Party shall be subject to the limitation set forth in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerclause (d) hereof;
(d) Investments made by the Borrower and its Restricted Subsidiaries may hold in or to any Subsidiary, Investments by any Subsidiary in or to the Borrower or in or to another Subsidiary and, subject to Section 5.14, Investments constituting non-cash proceeds received the creation or formation and capitalization of a new Subsidiary; provided, that the aggregate amount of Investments by Loan Parties in connection with or to, and Guarantees by Loan Parties of Indebtedness of any Subsidiary that is not a sale or other disposition of assets to Subsidiary Loan Party (including all such Investments and Guarantees existing on the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtorsClosing Date) shall not exceed $1,000,000 at any time outstanding;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiaryexpenses; provided, however however, that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall all such loans and advances does not exceed $500,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodtime;
(lf) Investments arising as a result in direct ownership interests in additional Oil and Gas Properties and other assets and properties directly relating to the ownership and operation of Hedge Agreements permitted pursuant to Section 7.10Oil and Gas Properties (including drilling and completion rigs, servicing equipment, gas gathering systems, transportation pipelines and processing plants) which are usual and customary in the oil and gas exploration and production business located within the geographic boundaries of the United States of America;
(mg) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodHedging Transactions permitted by Section 7.12; and
(nh) other Investments which in Unrestricted Subsidiaries the aggregate do not exceed $1,000,000 in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodFiscal Year.
Appears in 2 contracts
Samples: Second Lien Term Loan Agreement (Ram Energy Resources Inc), Revolving Credit Agreement (Ram Energy Resources Inc)
Investments, Loans, Etc. The Borrower Borrowers will not, and will not permit any of its Restricted their respective Subsidiaries to, purchase, repurchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments and cash (including demand deposit accounts) and Cash Equivalents;
(c) Guarantees by PRGX and its Subsidiaries constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Investments of a Person Loan Party shall be subject to the limitation set forth in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerclause (d) hereof;
(d) Investments made by PRGX in or to any Subsidiary and by any Subsidiary to PRGX or in or to another Subsidiary; provided, that the Borrower aggregate amount of Investments by Loan Parties in or to (including Guarantees by Loan Parties of Indebtedness of) any Subsidiary that is not a Loan Party (excluding all such Investments and its Restricted Guarantees listed on Schedule 7.4), shall not exceed $5,000,000 in the aggregate at any time outstanding (with such $5,000,000 being measured as (A) the outflow of cash from the Loan Parties to other Subsidiaries may hold Investments constituting nonthat are not Loan Parties, excluding cash arm’s-cash proceeds received in connection with a sale or length payments for services rendered by such other disposition of assets Subsidiaries that are not Loan Parties to the extent permitted by Section 7.6 or in connection with Loan Parties, net of (B) the settlement inflow of obligations owing cash, including via transfer pricing, from the other Subsidiaries that are not Loan Parties to it by financially troubled debtorsthe Loan Parties);
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans Loans or advances to employees, officers or directors of the any Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses, and for commission advances; provided, however, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 250,000 at any time time;
(f) Hedging Transactions permitted by Section 7.10;
(g) Permitted Acquisitions;
(h) To the extent permitted by Section 7.5(iii), PRGX’s redemption, purchase or repurchase of its common stock pursuant to any open-market stock repurchase program implemented by PRGX from time-to-time, provided, however, that such stock repurchases do not exceed $1,000,000 in the aggregate in any Fiscal Year;
(i) Guarantees of real estate and (ii) Investments consisting personalty leases of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Subsidiaries in the ordinary course of business;
(hj) a Restricted Subsidiary Extensions of trade credit (to Subsidiaries and to third party customers) in the Borrower may be established or created ordinary course of business, not exceeding ninety (but not capitalized unless otherwise permitted under this Section 7.490) so long as, to days from the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12original date due;
(ik) without duplication of any other clause of this Transactions permitted under Section 7.3 (unless expressly required to constitute a Permitted Investment or to otherwise require compliance with Section 7.4, so long as );
(l) Transactions permitted under Section 7.6 (unless expressly required to constitute a Permitted Investment or to otherwise require compliance with Section 7.4);
(m) To the Available Amount Conditions are satisfied at the time of such Investmentextent permitted by Section 5.11, the Borrower and its Restricted Subsidiaries formation of Subsidiaries, provided, however, that after the Closing Date, no Foreign Subsidiary may make form a Domestic Subsidiary;
(n) Extraordinary Investments in connection with the settlement or compromise of Accounts Receivable, in an amount not to exceed $100,000 in the aggregate outstanding at any time without Administrative Agent’s prior written consent; and
(o) Other Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary $100,000 in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed outstanding at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodtime.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (PRGX Global, Inc.), Revolving Credit and Term Loan Agreement (PRGX Global, Inc.)
Investments, Loans, Etc. The Borrower will notMake, and will not permit or hold any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to Investments in any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances to, or make any investment or any other interest in, any other Person, or purchase otherwise acquire or hold any Subsidiaries, or purchase, or lease or otherwise acquire all or any substantial portion of the property or assets (in one transaction or a series of transactionsincluding capital stock) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatthan:
(a) Investments (including Investments in the Borrower and its Restricted Subsidiaries may make and hold Permitted Investmentsform of Intercompany Loans permitted pursuant to Section 8.01(h)) now or hereafter made by (i) a Credit Party in any other Credit Party or (ii) a Domestic Consolidated Company which is not a Credit Party in any other Domestic Consolidated Company or in a Foreign Subsidiary;
(b) Investments (including Investments in the form of Intercompany Loans permitted pursuant to Section 8.01(h)) made by any Credit Party in any Consolidated Company which exist as of the Restatement Date;
(c) Investments (including Investments in the form of Intercompany Loans permitted pursuant to Section 8.01(h)(v)) made by a Credit Party in a Consolidated Company which is not a Credit Party; provided that:
(i) all such Investments made pursuant to this subsection (c), together with all Intercompany Loans permitted under Section 8.01(h)(v), shall not exceed $25,000,000 in the Borrower and its Restricted Subsidiaries may hold aggregate at any one time outstanding (excluding Investments in the Investments existing on the Fourth Amendment Closing Date and set forth form of Intercompany Loans listed on Schedule 7.4 and 6.18) unless otherwise consented to in writing by the Required Lenders;
(ii) any Loan Party may make Investments in any other Loan Party:
no Investment made pursuant to this subsection (c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided made at any time that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would exist as a result therefromof such Investment; and
(iii) such Investment is not a transfer of machinery, equipment, or other physical assets (provided, however, that nothing in this Section 8.05(c)(iii) shall limit the Borrower and its Restricted Subsidiaries may make Investments (andCredit Parties’ ability to transfer, thereafterdispose of, may hold such Investments) in an aggregate amount or sale assets to any Consolidated Company which is not a Credit Party to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodextent permitted by Section 8.03);
(fd) so long as no Default or Event of Default has occurred Investments made and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis simultaneously used for the then most recently ended Test Periodacquisition of the capital stock of any Person, or all or any substantial portion of the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating property or assets of any Person, in an Investment acquisition permitted pursuant to this clause Section 8.05(i);
(f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations e) direct obligations of the Total Net Leverage Ratio United States or any agency thereof, or obligations guaranteed by the United States or any agency thereof, in each case supported by the full faith and executed by a Responsible Officer credit of the Borrower certifying United States and maturing within one year from the date of creation thereof, together with shares of money market or mutual funds with assets in excess of $250,000,000 and that invest exclusively in assets satisfying the requirements of this clause (e);
(f) have been metcommercial paper maturing within one year from the date of creation thereof rated in the highest grade by a nationally recognized credit rating agency;
(g) so long as no Default time deposits maturing within one year from the date of creation thereof with, including certificates of deposit issued by, any office located in the United States of any bank or Event of Default has occurred and trust company which is continuing or would result therefrom, organized under the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors laws of the Borrower United States or any state thereof and has capital, surplus and undivided profits aggregating at least $500,000,000, including without limitation, any such deposits in Eurodollars issued by a foreign branch of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of businesssuch bank or trust company;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12Investments made by Plans;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available AmountPermitted Acquisitions;
(j) [reserved];Investments (other than those permitted by subsections (a) through (i) above and other than as set forth on Schedule 8.05(k)), in an aggregate amount at any time outstanding not to exceed $25,000,000; and
(k) Investments existing on the Restatement Date (other than those permitted by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause subsections (ka) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of through (xj) $25,000,000 and (yabove) 7.5% of Consolidated EBITDA calculated described on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodSchedule 8.05(k).
Appears in 2 contracts
Samples: Credit Agreement (Interface Inc), Credit Agreement (Interface Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guarantees constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) Investments made by the Borrower in or to any Loan Party and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsanother Loan Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans Loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses expenses; provided, however, that the aggregate amount of all such loans and advances does not exceed $2,500,000 at any time;
(f) Repurchases of shares of Capital Stock and options to purchase shares of Capital Stock in an aggregate amount not to exceed $15,000,000 at 3,000,000 from the Closing Date through the Fiscal Year ending on March 31, 2007, or $3,000,000 per Fiscal Year for any time and Fiscal Year thereafter without the prior consent of the Required Lenders;
(iig) Investments consisting of depositsLease, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers utility and similar Persons deposits in the ordinary course of business;
(h) a Restricted Subsidiary Permitted Acquisitions; provided, however, that the aggregate value of the Borrower may sum of current and deferred cash and securities to be established paid and issued, plus Indebtedness paid or created (but assumed, in connection with Permitted Acquisitions involving the acquisition of a minority share of the capital stock or other equity interests of a Person or business shall not capitalized exceed $25,000,000 in any fiscal year of the Borrower, unless otherwise permitted under this Section 7.4) so long as, to approved by the extent applicable, Administrative Agent and the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12Required Lenders;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available AmountDeposits permitted by Sections 7.1 or 7.2;
(j) [reserved]Joint ventures and teaming arrangements entered into by the Borrower or any Subsidiary in the ordinary course of business, provided that neither the Borrower or any Subsidiary assumes any obligations of any other Person in connection therewith;
(k) Investments Hedging Transactions permitted by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted SubsidiarySection 7.10; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;and
(l) Other Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments which in joint ventures the aggregate do not exceed $1,000,000 in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodFiscal Year.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Stanley, Inc.), Revolving Credit and Term Loan Agreement (Stanley, Inc.)
Investments, Loans, Etc. The Borrower Holdings will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary Subsidiary, except: Investments (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, that:
(aInvestments) the Borrower and its in Restricted Subsidiaries may make in existence on the Closing Date and hold Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the other Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) 7.4; Permitted Investments; Permitted Acquisitions; Investments made by the Borrower in or to any Subsidiary Loan Party may make and by any Subsidiary Loan Party to the Borrower or in or to another Subsidiary Loan Party; loans or advances to employees, officers, stockholders or directors of the Borrower or any Restricted Subsidiary in the ordinary course of business; provided, however, that the aggregate amount of all such loans and advances does not exceed $2,000,000 at any time outstanding; loans to franchise operators and owners of franchises acquired or funded pursuant to the Loan Facility Agreement and the other credit facility agreements referenced in Section 7.1(f); Guarantees permitted under Section 7.1(f); the acquisition or ownership of stock, obligations or securities received in settlement of debts (created in the ordinary course of business) owing to any Subsidiary Loan Party or any of their Restricted Subsidiaries; loans to and other investments in Foreign Subsidiaries that are Restricted Subsidiaries; provided that, the aggregate amount of such outstanding loans to and investments in such Foreign Subsidiaries do not exceed the amount permitted under Section 7.1(i); Investments in any other Loan Party:
investment grade corporate bonds and variable rate demand notes having a rating of BBB+ (cor the equivalent) any Investments of a Person in existence or higher, at the time such Person becomes a Restricted Subsidiary of acquisition thereof, from S&P or Xxxxx’x and in either case maturing within two years from the Borrower may be held by such Restricted Subsidiarydate of acquisition thereof in an aggregate amount not to exceed $100,000,000 at any time; provided that such other Investments were not made (other than Investments in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
Unrestricted Subsidiaries); provided, that, (di) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefromtherefrom and (ii) after giving effect to the payment thereof on a Pro Forma Basis, Holdings, the Borrower and its Restricted Subsidiaries may make would be in compliance with the financial covenants in Article VI measured as of the last day of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered hereunder; other Investments (and, thereafter, may hold such Investmentsother than Investments in Unrestricted Subsidiaries) in an aggregate amount not to exceed $50,000,000 at any time; and other Investments not to exceed, as of any date of determination, an amount equal to three percent (3.0%) of the greater aggregate book value of (x) $120,000,000 the total assets of Holdings, the Borrower and (y) 33.0% of Consolidated EBITDA calculated its Restricted Subsidiaries determined on a Pro Forma Basis for consolidated basis as of the then last day of the most recently ended Test Period;
Fiscal Quarter for which financial statements have been delivered; provided, that, (fi) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, therefrom and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and (ii) after giving effect thereto to the payment thereof on a Pro Forma Basis for the then most recently ended Test PeriodBasis, Holdings, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), would be in compliance with the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth financial covenants in reasonable detail the calculations Article VI measured as of the Total Net Leverage Ratio and executed by a Responsible Officer last day of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant Fiscal Quarter for which financial statements are required to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodhave been delivered hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Aaron's Company, Inc.), Credit Agreement
Investments, Loans, Etc. The Borrower Company will not, and will not permit any of its the Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a whollyWholly-owned Owned Subsidiary that is a Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Personunit, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower date hereof and its set forth on Schedule 6.04 (including Investments in such Restricted Subsidiaries may make and hold in Unrestricted Subsidiaries);
(b) Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guarantees constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 6.01;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets Subsidiary Guarantors (and, to the extent such Investments constitute Indebtedness permitted by under Section 7.6 or 6.01(c), in connection with other Subsidiaries) and in repurchases of the settlement capital stock of obligations owing the Company to it by financially troubled debtorsthe extent otherwise permitted hereunder;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans Loans or advances to employees, officers or directors of the Borrower Company or any of its Restricted Subsidiaries Subsidiary Guarantor in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount expenses;
(f) Hedging Agreements permitted by Section 6.10;
(g) any Acquisition; provided, that: (i) the Person to be (or whose assets are to be) so purchased or acquired does not to exceed $15,000,000 at any time and oppose such Acquisition, (ii) Investments consisting the line or lines of depositsbusiness of the Person to be (or whose assets are to be) so purchased or acquired are substantially the same as the Material Subsidiaries and their lines of business, expense prepayments(iii) prior to and immediately after giving effect to such Acquisition, accounts receivable arisingno Default or Event of Default shall have occurred and be continuing, trade debt granted (iv) if the costs of such Acquisition exceed $75,000,000, the Company shall have furnished to the Administrative Agent pro forma historical financial statements as of the end of the most recently completed fiscal period of the Company (whether quarterly or year end) giving effect to such Acquisition and other credits extended assuming that any Indebtedness incurred to customers effect such Acquisition shall be deemed to have been outstanding during the four full consecutive fiscal quarter period of the Company preceding such Acquisition and similar Persons to have borne a rate of interest during such period equal to that rate in existence at the date of determination, together with a certificate of a Responsible Officer, in the ordinary course form of businessExhibit G, prepared on a historical pro forma basis giving effect to such Acquisition as of the most recent fiscal quarter of the Company then ended, which certificate shall demonstrate that no Default or Event of Default would exist immediately after giving effect thereto, and (v) the Person acquired shall be a Subsidiary, or be merged into or with the Company or one of its Subsidiaries, immediately upon consummation of the Acquisition (or if assets are being purchased or acquired, the acquirer shall be the Company or one of its Subsidiaries);
(h) a Restricted Subsidiary Investments of the Borrower may be established or created (but not capitalized unless otherwise any Person acquired in an Acquisition permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;6.04(g); and
(i) without duplication of any other clause of this Investment (including an Acquisition permitted by Section 7.4, 6.04(g)) so long as the Available Amount Conditions are satisfied at the time of (i) both before and after giving effect to such Investment no Default shall have occurred or be continuing and (ii) after giving pro forma effect to such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not Company’s Total Leverage Ratio is less than or equal to exceed 3.00 to 1.00; provided that, if the Available Amount;
(j) [reserved];
(k) Investments by Total Leverage Ratio at such time is greater than 3.00 to 1.00, the Borrower Company or any Restricted Subsidiary in may make Investments funded solely from the Borrower or any Restricted Subsidiary; provided, however that proceeds of issuances of Equity Interests after the aggregate amount Effective Date so long as such Investments are funded from such proceeds within six (6) months from the date of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodsuch issuance.
Appears in 2 contracts
Samples: Credit Agreement (Watsco Inc), Credit Agreement (Watsco Inc)
Investments, Loans, Etc. The Borrower will notMake, and will not permit or hold any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to Investments in any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances to, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) hold any assets of any Subsidiaries, other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatthan:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;Those investments referenced in Schedule 8.5.
(ib) the Borrower and its Restricted Investments in Subsidiaries may hold the Investments existing that are Guarantors under this Agreement, whether such Subsidiaries are Guarantors on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and or become Guarantors in accordance with Section 7.10 after the Closing Date; provided, however, nothing in this Section 8.5 shall be deemed to authorize an investment pursuant to this subsection (iia) any Loan Party may make Investments in any other Loan Party:entity that is not a Subsidiary and a Guarantor prior to such investment;
(c) any Investments of a Person in existence at Subsidiaries, other than those Subsidiaries that are or become Guarantors under this Agreement, made after the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefromClosing Date, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 1,000,000 unless otherwise consented to in writing by the Lender;
(d) Direct obligations of the United States or any agency thereof, or obligations guaranteed by the United States or any agency thereof, in each case supported by the full faith and credit of the United States and maturing within one year from the date of creation thereof;
(e) Commercial paper maturing within one year from the date of creation thereof rated in the highest grade by a nationally recognized credit rating agency;
(f) Time deposits maturing within one year from the date of creation thereof with, including certificates of deposit issued by the Lender and any office located in the United States of any bank or trust company which is organized under the laws of the United States or any state thereof and has assets aggregating at least $500,000,000, including without limitation, any time and such deposits in Eurodollars issued by a foreign branch of any such bank or trust company;
(iig) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of businessmade by Plans;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, Permitted Intercompany Loans on terms and conditions acceptable to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12Lender;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower stock or any Restricted Subsidiary in the Borrower or any Restricted assets of another entity which thereby becomes a Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on 5,000,000 in cash consideration, which transaction constitutes a Pro Forma Basis for the then most recently ended Test PeriodPermitted Acquisition; and
(nj) Investments Advances made to employees in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater ordinary and normal course of business consistent with past practice and for business purposes, and which advances are repaid by the employee within thirty (x30) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Perioddays.
Appears in 1 contract
Investments, Loans, Etc. The Borrower Borrowers will not, and will not permit any of its Restricted their Domestic Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, Capital Stock or evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) ofindebtedness, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of a Person, or any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another any other Person, or create or form any Restricted Domestic Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Cash and Permitted Investments so long as such Investments are maintained in accounts subject to a Deposit Account Control Agreement, a Securities Account Control Agreement or in Excluded Accounts;
(c) Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Investments Loan Party shall be permitted only to the extent that an Investment in the principal amount of a Person in existence such Indebtedness would be permitted to be made at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with determination pursuant to clause (j) or anticipation (k) of such Person becoming a Restricted Subsidiary of the Borrowerthis Section 7.4;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower Borrowers or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses expenses; provided, however, that the aggregate amount of all such loans and advances does not exceed $5,000,000 at any time;
(e) Hedging Transactions permitted by Section 7.10;
(f) accounts receivable created, acquired or made and trade credit extended in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(g) Investments consisting of stock, obligations, securities or other property received in settlement of accounts receivable (created in the ordinary course of business); provided, however, that the aggregate amount of all such Investments under this clause (g) does not exceed $2,000,000 at any time;
(h) so long as (i) no Default or Event of Default shall have occurred and be continuing at the time thereof and (ii) immediately after giving effect to such Investment, the amount of Revolving Loans that would be available to be funded to the Borrowers pursuant to Section 2.2 is not less than $10,000,000, Investments in Subsidiaries which are not Loan Parties, following the Closing Date, in an aggregate amount not to exceed $15,000,000 at any time and (ii) 15,000,000; provided that such Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons shall be made in the ordinary course form of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, intercompany Indebtedness subject to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of terms set forth in Section 5.127.1(d);
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied (i) no Default or Event of Default shall have occurred and be continuing at the time of thereof and (ii) immediately after giving effect to such Investment, the Borrower amount of Revolving Loans that would be available to be funded to the Borrowers pursuant to Section 2.2 is not less than $10,000,000, repurchases of Capital Stock from employees and its Restricted Subsidiaries may make Investments directors in an amount not to exceed (x) $5,000,000 in the Available Amountaggregate during any Fiscal Year or (y) $10,000,000 in the aggregate at any time;
(j) [reserved]so long as (i) no Default or Event of Default shall have occurred and be continuing at the time thereof and (ii) immediately after giving effect to such Investment, the amount of Revolving Loans that would be available to be funded to the Borrowers pursuant to Section 2.2 is not less than $10,000,000, Investments in a Person that is not a Loan Party in an amount not to exceed (x) $2,000,000 in the aggregate during any Fiscal Year or (y) $5,000,000 in the aggregate at any time;
(k) Investments by the Borrower or any Restricted Subsidiary (including Investments in the Borrower Borrowers and their Subsidiaries) so long as (x) no Default or any Restricted Subsidiary; providedEvent of Default shall have occurred and be continuing at the time thereof or would result therefrom, however that (y) immediately after giving effect thereto on a Pro Forma Basis, the Borrowers shall be in compliance with (i) the financial covenant set forth in Section 6.2 and (ii) a Leverage Ratio of not greater than 2.00:1.00 and (z) immediately after giving effect to such Investment on a Pro Forma Basis, the Borrowers shall have not less than $50,000,000 of Liquidity, of which the aggregate amount of Investments Revolving Loans that would be available to be funded to the Borrowers at such time pursuant to this clause (k) in Restricted Subsidiaries that are Section 2.2 is not Subsidiary Loan Parties shall not exceed at any time the greater of (x) less than $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period25,000,000;
(l) Investments arising in or to Loan Parties so long as (x) no Default or Event of Default shall have occurred and be continuing at the time thereof or would result therefrom and (y) immediately after giving effect to such Investment on a result of Hedge Agreements permitted pursuant to Pro Forma Basis, the Borrowers shall be in compliance with the financial covenant set forth in Section 7.10;6.2; and
(m) Investments transactions effected pursuant to and in joint ventures in an aggregate amount not to exceed at any time accordance with the greater of Rights Agreement; provided, that (x) $25,000,000 to the extent any cash is to be paid pursuant to the Rights Agreement, such payment is permitted pursuant to clause (k) immediately above, and (y) 7.5% the amount to be paid does not exceed $500,000 in the aggregate. For purposes of Consolidated EBITDA calculated on a Pro Forma Basis determining the amount of any Investment outstanding for purposes of this Section 7.4, such amount shall be deemed to be the then most recently ended Test Period; and
amount of such Investment when made, purchased or acquired less any amount realized in respect of such Investment upon the sale, collection or return of capital (n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoriginal amount invested).
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) Guarantees by Borrower and its Subsidiaries constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Investments of a Person Loan Party shall be subject to the limitation set forth in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerclause (d) hereof;
(d) Investments made by the Borrower in or to any Subsidiary and by any Subsidiary to the Borrower or in or to another Subsidiary; provided, that (i) the aggregate amount of cash Investments by Loan Parties in or to, and Guarantees by Loan Parties of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party (including all such Investments and Guarantees existing on the Closing Date and not disclosed on Schedule 7.4) shall not exceed $500,000 in the aggregate at any time outstanding and (ii) the aggregate amount of Investments by Loan Parties (specifically excluding Guarantees) in or to any Subsidiary that is not a Subsidiary Loan Party comprised of non-cash Investments comprised of intercompany expense allocations by and between the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtorsshall be unlimited;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 100,000 at any time and time;
(iif) Hedging Transactions permitted by Section 7.10;
(g) Permitted Acquisitions;
(h) Investments consisting of deposits, expense prepayments, accounts receivable arising, the extension of trade debt granted and other credits extended to customers and similar Persons credit in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication Prepaid expenses in the ordinary course of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amountbusiness;
(j) [reserved];Promissory notes and other assets accepted in connection with the settlement of accounts receivable; and
(k) Other Investments by the Borrower or any Restricted Subsidiary which in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall do not exceed at $500,000 in any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period.Fiscal Year
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Easylink Services International Corp)
Investments, Loans, Etc. The Holdings and the Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “"Investments”) other than Investments constituting Permitted Acquisitions (including"), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 (including Investments in Subsidiaries);
(b) extensions of trade credit in the ordinary course of business;
(c) Permitted Investments;
(d) Permitted Acquisitions, and all Investments of any Person acquired in a Permitted Acquisition;
(iie) advances in the ordinary course of business to any independent contractor performing services for Holdings, any of its Subsidiaries or any of their agents not to exceed $20,000,000 in the aggregate at any time outstanding maturing not later than seven (7) years after the incurrence thereof;
(f) Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Loan Party may make shall be subject to the limitation set forth in clauses (h) and (i) below;
(g) Investments made by Holdings or any of its Subsidiaries in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(dh) Investments made by Holdings or any of its Subsidiaries in any Person other than a Loan Party; provided, that the Borrower aggregate amount of such Investments by Holdings or any of its Subsidiaries in or to, and Guarantees by Holdings or any of its Restricted Subsidiaries may hold of Indebtedness of any Person that is not a Loan Party (including all such Investments constituting non-cash proceeds received and Guarantees existing on the Closing Date, but excluding the Investments permitted in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtorsclause (i) below), shall not exceed $30,000,000 at any time outstanding;
(ei) so long as no Default Investments made by Holdings or Event any of Default has occurred and is continuing or would result therefromits Subsidiaries in Transplace; provided, that the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount of such Investments in, and Guarantees by Loan Parties of Indebtedness owed by, Transplace (including all such Investments and Guarantees existing on the Closing Date, shall not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period25,000,000 at any time outstanding;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (ij) loans or advances to employees, officers or directors of the Borrower Holdings or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 5,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved]time;
(k) Investments by the Borrower in notes and other securities received in full or any Restricted Subsidiary partial satisfaction of overdue debts and accounts payable in the Borrower ordinary course of business and for amounts which, individually or any Restricted Subsidiary; providedin the aggregate, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall do not exceed $10,000,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding;
(l) Investments arising as a result of Hedge Agreements Hedging Transactions permitted pursuant to by Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater treasury stock of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodHoldings; and
(n) other Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed $10,000,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding.
Appears in 1 contract
Samples: Revolving Credit Agreement (Swift Transportation Co Inc)
Investments, Loans, Etc. The Borrower will not, and will not -------------------------- permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscapital stock, partner or limited liability company interests or other ownership interests, evidence of indebtedness Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “"Investments”) other than Investments constituting Permitted Acquisitions (including"), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 (including Investments in Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1; ------------
(d) repurchase Senior Notes (to the extent permitted by the Indenture and applicable securities laws) for aggregate consideration not exceeding $50,000,000 in any calendar year, so long as, before and after giving effect thereto, the Borrower shall be in compliance with the financial covenants set forth in Article VI and no other Default or Event of Default shall have occurred and be continuing at the time such repurchase is effected;
(e) Investments made by the Borrower in or to any Subsidiary and by any Subsidiary to the Borrower or in or to another Subsidiary; provided, that (i) --------- the aggregate amount of Investments by Loan Parties in or to, and Guarantees by Loan Parties of Indebtedness of, any Subsidiary that is not a Guarantor (including all such Investments and Guarantees existing on the Closing Date), shall not exceed $5,000,000 at any time outstanding, and (ii) any Loan Party may make Investments in Acquisition giving rise to any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted SubsidiaryInvestment shall have been permitted pursuant to Section 7.10; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;-------------
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, employees and officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary made in the ordinary course of business for traveland not in excess of amounts customarily and historically loaned or advanced by the Borrower to such employees and officers; provided, entertainmenthowever, relocation and related expenses in an that the aggregate amount of all such --------- -------- loans and advances does not to exceed $15,000,000 2,500,000 at any time and outstanding;
(iig) Hedging Obligations permitted by Section 7.11; -------------
(h) Investments consisting received in settlement of deposits, expense prepayments, accounts receivable arising, debt created in the ordinary course of business; and
(i) extension of trade debt granted and other credits extended to customers and similar Persons credit in the ordinary course of business;
(hj) a Restricted Subsidiary Investments in assets held under non-qualified plans and deferred compensation arrangements for certain members of management and other employees as disclosed from time to time in the notes to the Borrower's consolidated financial statements as filed by the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower Securities and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];Exchange Commission; and
(k) Investments not otherwise permitted by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount preceding clauses of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures 7.4 in an aggregate amount not to exceed $10,000,000 at any one time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Dollar General Corp)
Investments, Loans, Etc. The Borrower will notPurchase or otherwise acquire or invest in the Capital Stock of, and will not permit or any of its Restricted Subsidiaries toother equity interest in, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger)(including, any Equity Interestswithout limitation, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any the Capital Stock of the foregoing) of, make any loans or advances toBorrower), or make any investment loan to, or enter into any arrangement for the purpose of providing funds or credit to, or, guarantee or become contingently obligated in respect of the obligations of or make any other interest investment, whether by way of capital contribution or otherwise, in, to or with any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) permit any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary so to do (all of the foregoing being collectively called “which are sometimes referred to herein as "Investments”) other than Investments constituting Permitted Acquisitions (including"), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted InvestmentsInvestments in Cash Equivalents;
(ib) the Borrower and its Restricted Subsidiaries may hold the Investments existing in existence on the Fourth Amendment Closing Date date hereof and set forth listed on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:-------- 8.8(b); ------
(c) Investments by the Borrower or its Subsidiaries in (x) existing Guarantor Subsidiaries (so long as the Subsidiaries are required to be Guarantor Subsidiaries in accordance with the terms of Section 7.10 and Section 11.17), (y) Wholly Owned Subsidiaries or (z) any Investments of a Person in existence at the time other Person, provided that contemporaneously with any such Investment such Person becomes a Restricted Guarantor Subsidiary of the Borrower may be held by such Restricted or a Wholly Owned Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in any Person to the extent that such investments are deemed to be investments under GAAP due to the reinvestment by such Person of existing funds or earnings in such Person (and not new value contributed by the Borrower or its Subsidiaries), provided that, if the Borrower or any Restricted Subsidiary; providedSubsidiary of the Borrower makes any cash or other investment of value in such Person, however that such cash or other investment of value shall not be permitted by this subSection (d);
(e) in addition to Investments permitted under Section 8.8(b) and (d), provided no Material Adverse Effect, Default or Event of Default exists or would result therefrom, Investments made after the Effective Date in a Permitted Line of Business not to exceed $100,000,000 in the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding; and
(nf) Investments the Borrower or any Subsidiary may acquire and own stock, obligations or securities received in Unrestricted Subsidiaries settlement of debts (created in an aggregate amount not the ordinary course of business) owing to exceed at the Borrower or any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodsuch Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Media General Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Personunit, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Domestic Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of Guarantees by the Borrower may be held and its Subsidiaries constituting Indebtedness permitted by such Restricted SubsidiarySection 7.1; provided that such Investments were the aggregate principal amount of Indebtedness of Subsidiaries that are not made Subsidiary Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in connection with or anticipation subsection (e) of such Person becoming a Restricted Subsidiary of the Borrowerthis Section;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses expenses;
(e) Investments made by the Borrower in or to any Domestic Subsidiary and by any Domestic Subsidiary in or to the Borrower or another Domestic Subsidiary provided that the aggregate amount of Investments by the Loan Parties in or to, and Guarantees by the Loan Parties of Indebtedness of, any Domestic Subsidiary that is not a Subsidiary Loan Party (including all such Investments and Guarantees existing on the Fifth Restatement Date) shall not exceed $500,000 at any time outstanding;
(f) Investments by Foreign Subsidiaries that are held or made outside the United States of America of the same or similar quality as Permitted Investments and Investments by a Foreign Subsidiary in another Foreign Subsidiary;
(g) Investments by the Borrower or any Domestic Subsidiary in any Foreign Subsidiaries in an aggregate principal amount not to exceed $75,000,000 at any time outstanding;
(h) Hedging Transactions permitted under Section 7.10;
(i) Investments permitted under Section 7.5(iii);
(j) Investments consisting of the Acquisition of assets of or equity interests in third parties provided, that (i) such Acquisition is in the same line of business or supports the primary business activities of Borrower and its Subsidiaries or is a business reasonably related to the business that Borrower and its Subsidiaries were engaged in on the Fifth Restatement Date; (ii) after giving effect to the Acquisition, the Borrower would have been in compliance with Section 6.1 (calculated on a Pro Forma Basis taking into account such Acquisition) measured as of the last day of the most recently ended Fiscal Quarter or Fiscal Year for which the Borrower has delivered financial statements to the Administrative Agent hereunder; (iii) no Default or Event of Default exists or would exist taking into account such Acquisition; and (iv) if the consideration for one or more Acquisitions exceeds in the aggregate $50,000,000 in any Fiscal Quarter, the Administrative Agent has received, prior to consummation of the Acquisition that causes such amount to be exceeded, a Pro Forma Compliance Certificate demonstrating compliance with Section 6.1; and
(k) Other Investments in an aggregate amount not to exceed $15,000,000 50,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Healthways, Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Restricted Subsidiaries);
(b) cash and Cash Equivalents;
(c) Guarantees by Borrower and its Restricted Subsidiaries constituting Indebtedness permitted by Section 7.1; and to the extent constituting Investment, the intercompany Indebtedness permitted by Section 7.1;
(d) Investments made by the Borrower in or to any Restricted Subsidiary and by any Restricted Subsidiary in or to the Borrower or in or to another Restricted Subsidiary, including, without limitation, Investments of (whether by acquisition or otherwise) resulting in a Person in existence at becoming a Restricted Subsidiary; and any Investment by the time such Person becomes Borrower or a Restricted Subsidiary constituting an acquisition of assets constituting a business unit, line of business or division of, or the Borrower may be held by Capital Stock of, another Person (in the case of any acquisition of such Restricted Subsidiary; provided that such Investments were not made Capital Stock, resulting in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSubsidiary);
(di) Investments by the Borrower or any Restricted Subsidiary in or to, and its Guarantees by the Borrower or any Restricted Subsidiaries may hold Subsidiary of Indebtedness of, any Subsidiary that is not (or will not become simultaneously with such Investment) a Restricted Subsidiary (excluding all such Investments constituting non-cash proceeds received and Guarantees existing on the Closing Date) and (ii) Investments in connection with a sale or to entities that are not Subsidiaries, including independent sales organizations and other disposition of assets to strategic partners (excluding all such Investments existing on the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) Closing Date), so long as (w) no Default or Event of Default has occurred and is continuing or would result therefrom, (x) if the Consolidated Senior Secured Leverage Ratio is greater than or equal to 5:00:1.00, as demonstrated by the Borrower and the Restricted Subsidiaries and calculated on a Pro Forma Basis after giving effect thereto, the aggregate amount of such Investments at any time outstanding does not exceed $25,000,000, (y) if the Consolidated Senior Secured Leverage Ratio is less than 5:00:1.00 but greater than or equal to 4.00:1.00, as demonstrated by the Borrower and the Restricted Subsidiaries and calculated on a Pro Forma Basis after giving effect thereto, the aggregate amount of such Investments at any time outstanding does not exceed the sum of (A) $25,000,000 plus (B) 50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries may make Investments (andfor the twelve month period ending as of the most recently completed Fiscal Quarter for with financial statements and the related Compliance Certificate were delivered in accordance with Section 5.1, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 as applicable and (yz) 33.0% of if the Consolidated EBITDA Senior Secured Leverage Ratio is less than 4:00:1.00, as demonstrated by the Borrower and the Restricted Subsidiaries and calculated on a Pro Forma Basis after giving effect thereto, the aggregate amount of such Investments at any time outstanding does not exceed the sum of (A) $25,000,000 plus (B) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the then twelve month period ending as of the most recently ended Test Periodcompleted Fiscal Quarter for with financial statements and the related Compliance Certificate were delivered in accordance with Section 5.1, as applicable; (the “Investment Basket”); provided, that, as of any date of determination, if the aggregate amount of Investments made pursuant to this clause (e) exceeds the Investment Basket solely as a result of a decline in Consolidated EBITDA calculated as of such date of determination, such excess shall not in and of itself result in an Event of Default;
(f) [reserved];
(g) loans or advances made to employees, officers or directors of the Borrower or any Restricted Subsidiary in an aggregate amount of all such loans and advances does not exceed $5,000,000 at any time outstanding;
(h) Hedging Transactions permitted by Section 7.10;
(i) 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 and other credits to suppliers in the ordinary course of business;
(j) Investments (including debt obligations and Capital Stock) received in connection with the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations of, or other disputes with, customers and suppliers arising in the ordinary course of business or upon the foreclosure with respect to any secured Investment;
(k) Investments in the ordinary course of business consisting of endorsements for collection or deposit under Article 3 of the Uniform Commercial Code;
(l) the Sterling Acquisition;
(m) without duplication of any other clauses in this Section, other Investments that do not exceed $25,000,000 in the aggregate at any time outstanding, determined as of the date of such Investment;
(n) so long as (x) no Default or Event of Default has occurred and is continuing or would result therefrom, therefrom and (y) the Borrower and the Total Net Restricted Subsidiaries demonstrate that the Consolidated Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period5.50:1.00, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f)in each case, the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for after giving effect thereto, Investments made with the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodAvailable Additional Basket; and
(no) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time made with the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodAvailable Equity Basket.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Restricted Subsidiaries);
(b) cash and Cash Equivalents;
(c) Guarantees by Borrower and its Restricted Subsidiaries constituting Indebtedness permitted by Section 7.1; and to the extent constituting Investment, the intercompany Indebtedness permitted by Section 7.1;
(d) Investments made by the Borrower in or to any Restricted Subsidiary and by any Restricted Subsidiary in or to the Borrower or in or to another Restricted Subsidiary, including, without limitation, Investments of (whether by acquisition or otherwise) resulting in a Person in existence at becoming a Restricted Subsidiary; and any Investment by the time such Person becomes Borrower or a Restricted Subsidiary constituting an acquisition of assets constituting a business unit, line of business or division of, or the Borrower may be held by Capital Stock of, another Person (in the case of any acquisition of such Restricted Subsidiary; provided that such Investments were not made Capital Stock, resulting in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSubsidiary);
(di) Investments by the Borrower or any Restricted Subsidiary in or to, and its Guarantees by the Borrower or any Restricted Subsidiaries may hold Subsidiary of Indebtedness of, any Subsidiary that is not (or will not become simultaneously with such Investment) a Restricted Subsidiary (excluding all such Investments constituting non-cash proceeds received and Guarantees existing on the Closing Date) and (ii) Investments in connection with a sale or to entities that are not Subsidiaries, including independent sales organizations and other disposition of assets to strategic partners (excluding all such Investments existing on the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) Closing Date), so long as (w) no Default or Event of Default has occurred and is continuing or would result therefrom, (x) if the Consolidated Senior Secured Leverage Ratio is greater than or equal to 5:00:1.00, as demonstrated by the Borrower and the Restricted Subsidiaries and calculated on a Pro Forma Basis after giving effect thereto, the aggregate amount of such Investments at any time outstanding does not exceed $30,000,000, (y) if the Consolidated Senior Secured Leverage Ratio is less than 5:00:1.00 but greater than or equal to 4.00:1.00, as demonstrated by the Borrower and the Restricted Subsidiaries and calculated on a Pro Forma Basis after giving effect thereto, the aggregate amount of such Investments at any time outstanding does not exceed the sum of (A) $30,000,000 plus (B) 50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries may make Investments (andfor the twelve month period ending as of the most recently completed Fiscal Quarter for with financial statements and the related Compliance Certificate were delivered in accordance with Section 5.1, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 as applicable and (yz) 33.0% of if the Consolidated EBITDA Senior Secured Leverage Ratio is less than 4:00:1.00, as demonstrated by the Borrower and the Restricted Subsidiaries and calculated on a Pro Forma Basis after giving effect thereto, the aggregate amount of such Investments at any time outstanding does not exceed the sum of (A) $30,000,000 plus (B) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the then twelve month period ending as of the most recently ended Test Periodcompleted Fiscal Quarter for with financial statements and the related Compliance Certificate were delivered in accordance with Section 5.1, as applicable; (the “Investment Basket”); provided, that, as of any date of determination, if the aggregate amount of Investments made pursuant to this clause (e) exceeds the Investment Basket solely as a result of a decline in Consolidated EBITDA calculated as of such date of determination, such excess shall not in and of itself result in an Event of Default;
(f) [reserved];
(g) loans or advances made to employees, officers or directors of the Borrower or any Restricted Subsidiary in an aggregate amount of all such loans and advances does not exceed $6,000,000 at any time outstanding;
(h) Hedging Transactions permitted by Section 7.10;
(i) 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 and other credits to suppliers in the ordinary course of business;
(j) Investments (including debt obligations and Capital Stock) received in connection with the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations of, or other disputes with, customers and suppliers arising in the ordinary course of business or upon the foreclosure with respect to any secured Investment;
(k) Investments in the ordinary course of business consisting of endorsements for collection or deposit under Article 3 of the Uniform Commercial Code;
(l) the Sterling Acquisition;
(m) without duplication of any other clauses in this Section, other Investments that do not exceed $30,000,000 in the aggregate at any time outstanding, determined as of the date of such Investment;
(n) so long as (x) no Default or Event of Default has occurred and is continuing or would result therefrom, therefrom and (y) the Borrower and the Total Net Restricted Subsidiaries demonstrate that the Consolidated Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period5.50:1.00, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f)in each case, the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for after giving effect thereto, Investments made with the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodAvailable Additional Basket; and
(no) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time made with the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodAvailable Equity Basket.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called "Investments"), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Investments of a Person Loan Party shall be subject to the limitation set forth in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerclause (d) hereof;
(d) Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with or to another Subsidiary; provided, that the settlement aggregate amount of obligations owing Investments by Loan Parties in or to, and Guarantees by Loan Parties of Indebtedness of, any Subsidiary that is not a Subsidiary Loan Party (including all such Investments and Guarantees existing on the Closing Date) shall not exceed $30,000,000 at any time outstanding; provided, further, that neither the Borrower nor any of its Subsidiaries shall be permitted to it Guarantee any Indebtedness owed by financially troubled debtorsany Securitization Subsidiary;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may make Investments (andby any Subsidiary to any Person that is not a Subsidiary; provided, thereafter, may hold such Investments) in an that the aggregate amount of all such Investments in or to, and Guarantees of Indebtedness of, any such Persons (including all such Investments and Guarantees existing on the Closing Date) shall not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period25,000,000 at any time outstanding;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiaryexpenses; provided, however however, that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall all such loans and advances does not exceed $1,000,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodtime;
(lg) Investments arising as a result of Hedge Agreements Hedging Obligations permitted pursuant to by Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(nh) other Investments which in Unrestricted the aggregate do not exceed $5,000,000 in any Fiscal Year. Without limitation of the foregoing, the Borrower will not, and will not permit any of its Subsidiaries to, purchase or acquire (in an one transaction or in a series of related transactions, including pursuant to any merger with any Person that was not a wholly-owned Subsidiary prior to such merger), any Capital Stock, evidence of indebtedness, other securities (including any option, warrant, or other right to acquire any of the foregoing) or any assets of any other Person if the aggregate amount not to purchase price in any such transaction or series of related transactions would exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period100,000,000.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not Make or permit to remain outstanding any of its Restricted Subsidiaries to, purchase, hold loan or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances advance to, or make any investment guarantee, endorse, or any other interest inotherwise be or become contingently liable, directly or indirectly in connection with obligations, stock or dividends of any other Person, or purchase hold any Investments in any Person, or otherwise acquire (in one transaction or a series of transactions) hold any assets of any Subsidiaries, other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatthan:
(a) Investments in Subsidiaries that are Guarantors under this Agreement, whether such Subsidiaries are Guarantors on the Borrower Closing Date or become Guarantors in accordance with Section 7.10 after the Closing Date; provided, however, nothing in this Section 8.3 shall be deemed to authorize or prohibit an investment pursuant to this subsection (a) in any entity that is not a Subsidiary and its Restricted Subsidiaries may make and hold Permitted Investmentsa Guarantor prior to such investment;
(ib) the Borrower and its Restricted Investments in Subsidiaries may hold the Investments existing that are Guarantors under this Agreement, whether such Subsidiaries are Guarantors on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and or become Guarantors in accordance with Section 7.10 after the Closing Date, for consideration of common stock of Borrower; provided, however, nothing in this Section 8.3 shall be deemed to authorize or prohibit an investment pursuant to this subsection (iib) any Loan Party may make Investments in any other Loan Party:entity that is not a Subsidiary and a Guarantor prior to such investment;
(c) any Investments of a Person Except as permitted in existence at the time such Person becomes a Restricted Subsidiary Section 8.2, investments in Subsidiaries which are not Guarantors, joint ventures and other non-consolidated entities existing as of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation date of such Person becoming a Restricted Subsidiary of the Borrower;this Agreement and as described on Schedule 8.3(c).
(d) Guarantee of the Borrower Lease and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received the notes to be issued in connection with a sale or other disposition therewith not to exceed eighty-seven percent (87%) of assets to the extent permitted by Section 7.6 or amount financed in connection with the settlement acquisition, buildout and equipping of obligations owing to it by financially troubled debtorsthe New York Restaurant;
(e) so long as no Default Advances or Event guaranties of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employeesofficers, officers or directors of the Borrower or any of its Restricted Subsidiaries employees and celebrities in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed of less than $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons 25,000,000 in the ordinary course aggregate, including those existing on the Closing Date;
(f) Guarantee of businessmortgage loan refinancing the Headquarters Real Property and/or the Headquarters Facility by another lender to the domestic Subsidiary of the Borrower owning the Headquarters Real Property;
(g) Other investments or loans of less than $1,000,000;
(h) a Restricted Subsidiary Direct obligations of the Borrower may be established United States or created (but not capitalized unless otherwise permitted under this Section 7.4) so long asany agency thereof, to or obligations guaranteed by the extent applicableUnited States or any agency thereof, in each case supported by the Borrower full faith and such Restricted Subsidiary comply with credit of the provisions United States and maturing within one year from the date of Section 5.12creation thereof;
(i) without duplication Commercial paper, bankers acceptances or corporate obligations maturing within one year from the date of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied creation thereof having a rating at the time as of such Investment, which any determination is made of P-1 (or higher) according to Moody's or as A-1 (or higher) according to Standard & Poor's corporation or the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amountequivalent thereof if by another nationally recognized credit rating agency;
(j) [reserved]Time deposits maturing within one year from the date of creation thereof, including certificates of deposit issued by any Lender and any office located in the United States of any bank or trust company which is organized under the laws of the United States or any state thereof and has total assets aggregating at least $500,000,000, including without limitation, any such deposits in Eurodollars issued by a foreign branch of any such bank or trust company;
(k) Investments made by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodPlans; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Planet Hollywood International Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called "INVESTMENTS"), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Personunit, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower date hereof and its Restricted Subsidiaries may make and hold set forth on SCHEDULE 7.4 (including Investments in Subsidiaries);
(b) Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guarantees constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSECTION 7.1;
(d) Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsanother Subsidiary;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses expenses;
(f) Hedging Obligations permitted by SECTION 7.10;
(g) Other Investments which in an the aggregate amount do not to exceed $15,000,000 at 7,000,000 in any time fiscal year of the Borrower; provided, however, that, to the extent an Investment shall also qualify as an Acquisition, such Investment shall not be permitted under this clause (g) and shall be required to comply with subsection (i) of this SECTION 7.4; provided, further, that this clause (g) shall not be used for the purpose of making any Investment of the type described in clause (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course defined term of business"Permitted Investment";
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, Investments made pursuant to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;deferred compensation plans; and
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments Acquisitions permitted by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) SECTION 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period.
Appears in 1 contract
Samples: Revolving Credit Loan Agreement (Lone Star Steakhouse & Saloon Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of a Person, or any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another any other Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries existing on the date hereof);
(b) cash and Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Investments of a Person Loan Party shall be subject to the limitation set forth in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerclause (d) below;
(d) Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with or to another Subsidiary; provided, that the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default Investments by Loan Parties in or Event of Default has occurred and is continuing or would result therefromto, and Guarantees by Loan Parties of Indebtedness of any such Subsidiary that is not a Subsidiary Loan Party (excluding all such Investments and Guarantees existing on the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment Closing Date) pursuant to this clause (f), the Borrower d) shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been metnot exceed $1,000,000 at any time outstanding;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (ie) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses expenses; provided, however, that the aggregate outstanding amount of all such loans and advances does not exceed $20,000,000 at any time;
(f) Hedging Transactions permitted by Section 7.10;
(g) Investments made by the Borrower with proceeds of the Dividend, and the proceeds of the dividend described in Section 6.5, in the form of intercompany loans made by the Borrower to (i) PJ&Co, (ii) a Subsidiary Loan Party or (iii) regulated Foreign Subsidiaries; provided that in the case of clause (iii) above, (x) such intercompany loan shall be repaid in full within ten (10) Business Days following the date such intercompany loan is made, (y) the outstanding principal amount of intercompany loans made pursuant to clause (iii) above shall not at any time exceed $30,000,000 in the aggregate and (z) to the extent that any intercompany loan made to a regulated Foreign Subsidiary may not be repaid to the Borrower without the prior approval or consent of the applicable regulatory authority, such intercompany loan must be repaid in full within 45 Business Days of the date such intercompany loan is made (in lieu of the above 10 Business Day requirement) and the aggregate amount of all intercompany loans under this clause (z) shall not exceed $20,000,000 at any time outstanding (it being understood and agreed that the intercompany loans permitted under this clause (z) shall be treated as a sublimit of the $30,000,000 limitation in clause (y) above and shall also be included in, and be subject to, the $30,000,000 limitation in clause (y) above);
(h) purchases in the nature of Capital Expenditures in the ordinary course of business consistent with past practices;
(i) Investments by PJ&Co made in the ordinary course of business in accordance with Rule 15c3-3 of the Exchange Act;
(j) Securities purchased under agreements to resell (to the extent such transactions constitute Investments);
(k) Investments in Securities, whether (i) purchased and held for resale, (ii) for such Person’s own investment purposes or (iii) to fund deferred compensation liabilities for employees, in each case, in the ordinary course of business and consistent with past practice;
(l) Investments in margin loans to retail customers in the ordinary course of business and consistent with past practice;
(m) Investments by the Borrower or any Subsidiary in the form of Permitted Acquisitions; provided, that the aggregate amount of Permitted Acquisition Consideration for all Permitted Acquisitions after the Closing Date does not exceed $20,000,000; and
(n) other Investments in an aggregate amount not to exceed $15,000,000 at 1,000,000 in any time and (ii) Investments consisting Fiscal Year. For purposes of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in determining the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication amount of any other clause Investment outstanding for purposes of this Section 7.4, so long as such amount shall be deemed to be the Available Amount Conditions are satisfied at the time amount of such InvestmentInvestment when made, purchased or acquired less any amount realized in respect of such Investment upon the Borrower and its Restricted Subsidiaries may make Investments in an amount sale, collection or return of capital (not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate original amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodinvested).
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Sixth Amendment Closing Effective Date and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guarantees constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) Investments made (i) by the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to any Subsidiary Loan Party, (ii) by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it a Subsidiary Loan Party and (iii) by financially troubled debtorsany Restricted Subsidiary that is not a Loan Party in or to any other Restricted Subsidiary that is not a Loan Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate amount not to exceed $15,000,000 of all such loans and advances at any time outstanding does not exceed the greater of (x) $5,000,000 and (y) 2% of LTM Consolidated EBITDA (as of the date of the making of such Investment);
(f) repurchases of shares of Capital Stock of, and options, warrants, or other rights to purchase shares of Capital Stock to purchase shares of Capital Stock of, the Borrower or any Excluded JV (which in the case of any Excluded JV, shall be a repurchase from a minority owner of such Excluded JV), and provided, that for the purpose of this clause (f) at the time such repurchase is made and after giving effect thereto (i) no Default or Event of Default has occurred and is continuing nor would occur and (ii) the Borrower would be in compliance with the financial covenants contained in Article 6 on a pro forma basis;
(g) (i) Permitted Acquisitions and xxxxxxx money deposits in connection therewith and (ii) Investments made by any Person existing at the time such Person becomes a Subsidiary or consolidates, amalgamates or merges with the Borrower or any of its Subsidiaries in connection with a Permitted Acquisition or other Investment permitted hereunder, so long as such Investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation, amalgamation or merger;
(h) Hedging Transactions other than Hedging Transactions entered into in the ordinary course of business to hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct of its business or the management of its liabilities, including any such obligation which is a forward equity commitment or confirmation or forward equity sale agreement to the extent the terms thereof provide that the obligation can be satisfied by the issuance of Capital Stock;
(i) Investments consisting of deposits, expense prepayments, extensions of credit in the nature of accounts receivable arisingor notes receivable arising from the grant of trade credit in the ordinary course of business, trade debt granted and Investments received (x) in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and (y) in connection with the bankruptcy or reorganization of suppliers and customers and in good faith settlement of delinquent obligations of, and other credits extended to disputes with, customers and similar Persons suppliers arising in the ordinary course of business;
(hj) a Restricted Subsidiary Investments consisting of receivables and notes received from students in the ordinary course of business;
(k) the Torrens Acquisition and the Investments of Torrens and its Subsidiaries existing on the Third Amendment Effective Date, so long as such Investments were not made in contemplation of Torrens and its Subsidiaries becoming Subsidiaries of the Borrower may be established or created Borrower;
(but l) the Capella Acquisition and the Investments in Capella Education Company and its Subsidiaries existing on the Second Amendment Effective Date, so long as such Investments were not capitalized unless otherwise permitted under this Section 7.4made in contemplation of Capella Education Company and its Subsidiaries becoming Subsidiaries of the Borrower;
(m) Investments in Excluded Subsidiaries in an amount not to exceed, in any Fiscal Year, the greater of $50,000,000 and 15% of LTM Consolidated EBITDA (as of the date of the making of such Investment);
(n) other Investments (including, without limitation, Investments in Excluded Subsidiaries) so long as, on a pro forma basis after giving effect to such Investments and assuming that such Investments were consummated on the extent applicablefirst day of the most recently ended period of four consecutive Fiscal Quarters, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12pro forma Leverage Ratio shall not be greater than 1.75 to 1;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(lo) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodPermitted Receivables Financings; and
(np) other Investments which in Unrestricted Subsidiaries the aggregate do not exceed, in an aggregate amount not to exceed at any time Fiscal Year, the greater of (x) $25,000,000 50,000,000 and (y) 7.515% of LTM Consolidated EBITDA calculated on a Pro Forma Basis for (as of the then most recently ended Test Perioddate of the making of such Investment). Notwithstanding the foregoing, in no event shall any Loan Party make any Investment (other than any nonexclusive license) which results in or facilitates in any manner any Material Intellectual Property owned by such Loan Party being contributed or otherwise transferred by such Loan Party to any Unrestricted Subsidiary.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Strategic Education, Inc.)
Investments, Loans, Etc. The Borrower will not, and will ------------------------ not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called "Investments"), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Personunit, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (including Investments in Subsidiaries but excluding Permitted Investments) existing on the Borrower date hereof and its Restricted Subsidiaries may make and hold set forth on Schedule -------- 7.4; ---
(b) Permitted Investments;
(ic) the Borrower Investments constituting Indebtedness permitted by Section 7.1(d) and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make other Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerGuarantor;
(d) Investments in Foreign Subsidiaries resulting from the transfer by the Borrower and its Restricted to such Foreign Subsidiaries may hold Investments constituting non-cash proceeds received of existing software license arrangements with customer operations currently located in connection with a sale or other disposition of assets to the extent permitted territory served by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtorssuch Foreign Subsidiary;
(e) so long as no Default or Event In addition to Investments permitted under either of Default has occurred the immediately preceding clauses (a) and is continuing or would result therefrom(d), other Investments by the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount a Foreign Subsidiary of the Borrower not to exceed $5,000,000 in the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodaggregate, including without limitation Investments constituting Indebtedness permitted by Section 7.1(e);
(f) so long as no Default or Event Investments consisting of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and expenses;
(iih) Investments consisting of deposits, expense prepayments, represented by accounts receivable arisingcreated, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(i) Investments (including debt granted obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other credits extended to disputes with, customers and similar Persons suppliers arising in the ordinary course of business;
(hj) a Restricted Subsidiary of any prepaid royalties or advanced commissions paid by the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, any Subsidiary to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;any Person; and
(ik) without duplication Investments of any other clause of this Section 7.4, so long as a nature not contemplated in the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments foregoing subsections in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary $2,000,000 in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments and Permitted Acquisitions;
(c) Guarantees by Borrower and its Subsidiaries constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Investments of a Person Loan Party shall be subject to the limitation set forth in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerclause (d) hereof;
(d) the Investments made by Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with or to another Subsidiary; provided, that the settlement aggregate amount of obligations owing to it Investments by financially troubled debtorsLoan Parties in or to, and Guarantees by Loan Parties of Indebtedness, of any Subsidiary that is not a Subsidiary Loan Party (including all such Investments and Guarantees existing on the Closing Date) shall not exceed $1,000,000 at any time outstanding;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiaryexpenses; provided, however however, that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall all such loans and advances does not exceed $100,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodtime;
(lf) Investments arising as a result of Hedge Agreements Hedging Transactions permitted pursuant to by Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(ng) Other Investments which in Unrestricted Subsidiaries the aggregate do not exceed $1,000,000 in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodFiscal Year.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not Make or permit to remain outstanding any of its Restricted Subsidiaries to, purchase, hold loan or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances advance to, or make guarantee, endorse, or otherwise be or become contingently liable, directly or indirectly, or incur any investment Guaranteed Indebtedness in connection with obligations (whether recourse or any other interest innon-recourse), stock or dividends of any other Person, or purchase hold any Investments in any Person, or otherwise acquire (in one transaction or a series of transactions) hold any assets of any Subsidiaries, other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatthan:
(a) Investments in Subsidiaries that are Guarantors under this Agreement, whether such Subsidiaries are Guarantors on the Borrower Closing Date or become Guarantors in accordance with Section 7.10 after the Closing Date; provided, however, nothing in this Section 8.3 shall be deemed to authorize or prohibit an investment pursuant to this subsection (a) in any 77 entity before that entity is a Subsidiary and its Restricted Subsidiaries may make and hold Permitted Investmentsa Guarantor ;
(ib) the Borrower and its Restricted Investments in Subsidiaries may hold the Investments existing that are Guarantors under this Agreement, whether such Subsidiaries are Guarantors on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and or become Guarantors in accordance with Section 7.10 after the Closing Date, for consideration of common stock of Borrower; provided, however, nothing in this Section 8.3 shall be deemed to authorize or prohibit an investment pursuant to this subsection (iib) any Loan Party may make Investments in any other Loan Party:entity before that entity is a Subsidiary and a Guarantor;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary Subsidiaries which are not Guarantors, joint ventures and other non-consolidated entities existing as of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation date of such Person becoming a Restricted Subsidiary of the Borrower;this Agreement and as described on Schedule 8.3(c).
(d) Guarantee of the Borrower Lease and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received the notes to be issued in connection with a sale or other disposition therewith not to exceed eighty-two percent (82%) of assets to the extent permitted by Section 7.6 or amount financed in connection with the settlement acquisition, buildout and equipping of obligations owing to it by financially troubled debtorsthe New York Restaurant;
(e) so long as no Default Advances or Event guaranties of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employeesofficers, officers or directors of the Borrower or any of its Restricted Subsidiaries employees and celebrities in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed of less than $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons 25,000,000 in the ordinary course aggregate, including those existing on the Closing Date;
(f) Other investments or loans of businessless than $1,000,000;
(g) Direct obligations of the United States or any agency thereof, or obligations guaranteed by the United States or any agency thereof, in each case supported by the full faith and credit of the United States and maturing within one year from the date of creation thereof;
(h) Commercial paper, bankers acceptances or corporate obligations maturing within one year from the date of creation thereof having a Restricted Subsidiary rating at the time as of which any determination is made of P-1 (or higher) according to Moody's or as A-1 (or higher) according to Standard & Poor's corporation or the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12equivalent thereof if by another nationally recognized credit rating agency;
(i) without duplication Time deposits maturing within one year from the date of creation thereof, including certificates of deposit issued by any Lender and any office located in the United States of any other clause bank or trust company which is organized under the laws of this Section 7.4the United States or any state thereof and has total assets aggregating at least $500,000,000, so long as the Available Amount Conditions are satisfied at the time including without limitation, any such deposits in Eurodollars issued by a foreign branch of any such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amountbank or trust company;
(j) [reserved]Investments made by Plans;
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period.
Appears in 1 contract
Samples: Revolving Credit Agreement (Planet Hollywood International Inc)
Investments, Loans, Etc. The Holdings and the Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “"Investments”) other than Investments constituting Permitted Acquisitions (including"), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 (including Investments in Subsidiaries);
(b) extensions of trade credit in the ordinary course of business;
(c) Permitted Investments;
(d) Permitted Acquisitions, and all Investments of any Person acquired in a Permitted Acquisition;
(iie) advances in the ordinary course of business to any independent contractor performing services for Holdings, any of its Subsidiaries or any of their agents not to exceed $20,000,000 in the aggregate at any time outstanding maturing not later than seven (7) years after the incurrence thereof;
(f) Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Loan Party may make shall be subject to the limitation set forth in clauses (h) and (i) below;
(g) Investments made by Holdings or any of its Subsidiaries in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(dh) Investments made by Holdings or any of its Subsidiaries in any Person other than a Loan Party; provided, that the Borrower aggregate amount of such Investments by Holdings or any of its Subsidiaries in or to, and Guarantees by Holdings or any of its Restricted Subsidiaries may hold of Indebtedness of any Person that is not a Loan Party (including all such Investments constituting non-cash proceeds received and Guarantees existing on the Closing Date, but excluding the Investments permitted in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtorsclause (i) below), shall not exceed $30,000,000 at any time outstanding;
(ei) so long as no Default Investments made by Holdings or Event any of Default has occurred and is continuing or would result therefromits Subsidiaries in Transplace; provided, that the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount of such Investments in, and Guarantees by Loan Parties of Indebtedness owed by, Transplace (including all such Investments and Guarantees existing on the Closing Date, shall not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period25,000,000 at any time outstanding;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (ij) loans or advances to employees, officers or directors of the Borrower Holdings or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 5,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved]time;
(k) Investments by the Borrower in notes and other securities received in full or any Restricted Subsidiary partial satisfaction of overdue debts and accounts payable in the Borrower ordinary course of business and for amounts which, individually or any Restricted Subsidiary; providedin the aggregate, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall do not exceed $10,000,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding;
(l) Investments arising as a result of Hedge Agreements Hedging Transactions permitted pursuant to by Section 7.107.9;
(m) Investments in joint ventures treasury stock of Holdings;
(n) other Investments not to exceed $10,000,000 at any time outstanding;
(o) Investments made by Holdings or any of its Subsidiaries in the Captive Insurance Subsidiary in an aggregate cash amount not to exceed at any time $250,000, with a Letter of Credit of up to $49,750,000 posted by the greater Borrower to provide credit support for liabilities of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodCaptive Insurance Subsidiary; and
(np) Investments a promissory note in Unrestricted Subsidiaries the amount of $17,000,000 payable over a six-year period issued by Auto Carrier Holdings, Inc. in an aggregate amount not favor of the Borrower in connection with the sale of the autohaul business to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period.Auto Carrier Holdings, Inc.
Appears in 1 contract
Samples: Revolving Credit Agreement (Swift Transportation Co Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-wholly owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guaranty any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Second Amendment Closing Effective Date and set forth on Schedule 7.4 7.3 (including Investments in Subsidiaries);
(b) Permitted Investments;
(c) Guaranties of Indebtedness under (i) the Franchise Facility and (ii) other Indebtedness in an amount not to exceed $10,000,000 in the aggregate at any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the one time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borroweroutstanding;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received made by any Loan Party in connection with a sale or to any other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtorsLoan Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses expenses;
(f) Hedging Agreements permitted by Section 7.8;
(g) Investments in an aggregate amount franchise operators through the Franchise Partner Program; provided, that such Investments made pursuant to this subsection (g) together with Investments made pursuant to subsection (h) below shall not to exceed $15,000,000 10,000,000 in the aggregate at any one time and outstanding;
(iih) Investments consisting in franchise operators through the Traditional Franchisee program pursuant to the purchase option agreements entered into with those operators; provided, that such Investments made pursuant to this subsection (h) together with Investments made pursuant to subsection (g) above shall not exceed $10,000,000 in the aggregate at any one time outstanding;
(i) Investments received in settlement of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Indebtedness created in the ordinary course of business;; CHAR1\1040690v15
(hj) Acquisitions by any Loan Party meeting the following requirements (each such Acquisition constituting a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;“Permitted Acquisition”):
(i) without duplication as of any other clause the date of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time consummation of such InvestmentAcquisition, no Default or Event of Default shall have occurred and be continuing or would result from such Acquisition, and the representations and warranties contained herein shall be true both before and after giving effect to such Acquisition;
(ii) such Acquisition is consummated on a non-hostile basis pursuant to a negotiated acquisition agreement approved by the board of directors or other applicable governing body of the seller or entity to be acquired, and no material challenge to such Acquisition shall be pending or threatened by any shareholder or director of the seller or entity to be acquired;
(iii) the business to be acquired in such Acquisition is similar or related to one or more of the lines of business in which the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed are engaged on the Available AmountClosing Date;
(jiv) [reserved]as of the date of consummation of such Acquisition, all material approvals required in connection therewith shall have been obtained;
(v) after giving effect to such Acquisition, the aggregate consideration (including cash and non-cash consideration, any assumption of Indebtedness, deferred purchase price and any earn-out obligations) paid for all Acquisitions in any fiscal year shall not exceed $35,000,000; provided, however, if subsequent to the Second Amendment Effective Date, the Adjusted Total Debt to EBITDAR Ratio is less than 3.0 to 1.0 as of the last day of two consecutive Fiscal Quarters, the annual basket provided for above shall no longer apply so long as (A) the Adjusted Total Debt to EBITDAR Ratio on a Pro Forma Basis after giving effect to any such Acquisition is less than 3.0 to 1.0 and (B) in the case where after giving effect to any such Acquisition, the aggregate consideration paid for all Acquisitions in the applicable fiscal year exceeds $5,000,000, the Borrower shall have delivered to the Administrative Agent not less than five (5) days prior to the consummation of such Acquisition a pro form compliance certificate demonstrating that the Adjusted Total Debt to EBITDAR Ratio on a Pro Form Basis (after giving effect to any such Acquisition and all extensions of credit funded in connection therewith as if made on the first day of the applicable period) is less than 3.0 to 1.0; and
(vi) in the case where after giving effect to any Acquisition, the aggregate consideration for all Acquisitions occurring in the applicable fiscal year is greater than $5,000,000, not less than five (5) days prior to the consummation of such Acquisition, the Borrower shall have delivered to the Administrative Agent, a pro forma compliance certificate, which shall reflect that, on a Pro Forma Basis, the Borrower would have been in compliance with the financial covenants set forth in Article VI for the four fiscal quarter period reflected in the compliance certificate most recently delivered to the Administrative Agent pursuant to Section 5.1(c) prior to the consummation of such Acquisition (giving effect to such Acquisition and all extensions of credit funded in connection therewith as if made on the first day of such period); and CHAR1\1040690v15
(k) Investments by in Equity Interests of the Borrower or any Restricted Subsidiary in to the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of extent permitted under Section 7.4. Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties under Section 7.3 shall not exceed at any time be permitted if, before or after giving effect to the greater making of (x) $25,000,000 such Investment, a Default or an Event of Default has occurred and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;is continuing.
(lv) Investments arising Section 7.4 of the Credit Agreement is hereby amended to read as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period.follows:
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), ) any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Personunit, or purchase or acquire all or substantially all of except that the assets of another Person, or create or form Borrower and any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatmay:
(a) the Borrower purchase or otherwise acquire and its Restricted Subsidiaries may make and hold Permitted Investmentsown short-term money market items;
(b) purchase or otherwise acquire any assets of any other Person that constitute a business unit if, after giving pro forma effect to such purchase or acquisition (i) the Borrower and its Restricted Subsidiaries may hold would be in compliance with the Investments existing on the Fourth Amendment Closing Date and financial covenants set forth on Schedule 7.4 and in Article VI, (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred would exist, and is continuing or would result therefrom, (iii) the representations and warranties of the Borrower set forth in the Loan Documents would be true and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) correct in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodall material respects;
(fc) so long as no Default invest, by way of purchase of securities or Event of Default has occurred and is continuing capital contributions, in the Subsidiary Banks or would result therefromany other Person or Persons, and upon the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations Borrower’s purchase or other acquisition of more than 50% of the Total Net Leverage Ratio and executed by stock of any bank, such bank thereupon becomes a Responsible Officer of the Borrower certifying the requirements of “Subsidiary Bank” for all purposes under this clause (f) have been metAgreement;
(gd) so long as no Default invest, by way of loan, advance, extension of credit (whether in the form of lease, conditional sales agreement, or Event otherwise), purchase of Default has occurred and is continuing securities, capital contributions, or would result therefromotherwise, the Borrower and its Restricted Subsidiaries may make in (i) loans or advances to employeesSubsidiaries with no limit, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of depositsin Union Associates Partnership, expense prepayments, accounts receivable arising, trade debt granted Ninety-Three Associates Limited Partnership and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted non-Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments partnerships in an amount not to exceed the Available Amount;$10,000,000; and
(je) [reserved];
(k) Investments by in the case of the Trust Issuer, purchase the Trust Indebtedness and, in the case of the Borrower, issue the Trust Guarantee. Nothing in this Section prohibits the Borrower or any Restricted Subsidiary Bank from making loans, advances, or other extensions of credit in the Borrower ordinary course of banking upon substantially the same terms as heretofore extended by them in such business or any Restricted Subsidiary; provided, however that upon such terms as may at the aggregate amount of Investments pursuant to this clause (k) time be customary in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodbanking business.
Appears in 1 contract
Samples: Revolving Credit Agreement (Boston Private Financial Holdings Inc)
Investments, Loans, Etc. The Borrower will notMake, permit or hold any Investments other than:
(a) Investments in the Capital Stock of Subsidiaries of Parent and Receivables Subsidiaries of Parent existing as of the Closing Date or existing as Subsidiaries of Parent immediately prior to the making of such Investment, and will not permit any Investments in the form of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant loans and advances by Borrower to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness Guarantor;
(b) Investments in the Capital Stock or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances to, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute is engaged in a business unit permitted by Section 7.10 hereof; provided, that before and after giving effect to such Investment and any Funded Debt incurred by Borrower or division such Subsidiary in connection with making such Investment, (x) Borrower is and will be in compliance with Section 6.08 hereof and if the Investment is greater than $125,000,000, Borrower has delivered pro forma financial covenants calculations demonstrating such compliance, in such detail and using such form of such another Personpresentation of historical and forecasted financial information as may be satisfactory to the Administrative Agent (based on the projected Consolidated Interest Expense or Funded Debt, or purchase or acquire all or substantially all of as the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingcase may be, for the avoidance immediately succeeding four fiscal quarters (including Consolidated Interest Expense incurred a result of doubt, the Taurus Acquisitionincurrence of any such Funded Debt) and the historical Consolidated EBITDA (including the Consolidated EBITDA of such Person)); provided, that:
(ay) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 no other Default or Event of Default exists hereunder and (iiz) any Loan Party may make Investments in any other Loan Party:as a result of such Investment, such Person becomes a Subsidiary of Borrower, and promptly complies with Section 6.09 if it becomes a Material Subsidiary of Borrower;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary marketable direct obligations of the Borrower may be held United States or any agency thereof, or obligations guaranteed by such Restricted Subsidiary; provided that such Investments were not made the United States or any agency thereof, in connection with or anticipation of such Person becoming a Restricted Subsidiary each case supported by the full faith and credit of the BorrowerUnited States and maturing within one year from the date of creation thereof;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Indebtedness created in the ordinary course of business for travelbusiness, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting the endorsement of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons negotiable instruments in the ordinary course of business;
(he) commercial paper issued by corporations, each of which has a Restricted Subsidiary consolidated net worth of not less than $500,000,000, and conducts a substantial portion of its business in the Borrower may be established United States of America, maturing no more than 365 days from the date of acquisition thereof and having as at any date of determination a rating of P-1, P-2 or created (but not capitalized unless otherwise permitted under this Section 7.4) so long asP-3 from Standard & Poor’s or a rating of X-0, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12X-0 or A-3 from Moody’s;
(if) money market or similar depository accounts, certificates of deposit or bankers acceptances, in each case redeemable upon demand or maturing within one year from the date of acquisition thereof, issued by commercial banks incorporated under the laws of the United States of America or any state thereof or the District of Columbia, provided (x) each such bank has at any date of determination combined capital and surplus of not less than $1,000,000,000 and a rating of its long-term debt of at least A by Standard & Poor’s or at least A by Moody’s or a long-term deposit rating of at least A issued by Standard & Poor’s or at least A issued by Moody’s and (y) the aggregate amount of all such certificates of deposit issued by such bank are fully insured at all times by the Federal Deposit Insurance Company;
(g) advances and loans to officers and employees of the Consolidated Companies made in the ordinary course of business, including without duplication limitation, loans to executives for the purchase of any other clause stock of this Section 7.4, so long as Parent pursuant to a program established by the Available Amount Conditions are satisfied at the Board of Directors or a committee thereof from time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments to time in an amount not to exceed the Available Amount$15,000,000;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(mh) Investments in joint ventures in an aggregate amount during any fiscal year of Parent not to exceed at any time an amount equal to ten percent (10%) of Parent’s Consolidated Net Worth as of the greater end of (x) $25,000,000 and (y) 7.5% the immediately preceding fiscal year of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodParent; and
(ni) Investments in Unrestricted Subsidiaries (other than those permitted by paragraphs (a) through (h) above) in an aggregate amount during any fiscal year of Parent not to exceed at any time an amount equal to five (5%) percent of Parent’s Consolidated Net Worth as of the greater end of (x) $25,000,000 and (y) 7.5% the immediately preceding fiscal year of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodParent.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will notMake any Investment, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances to, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, that:except
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Cash Equivalents;
(c) Guarantees by a Loan Party or any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received made by any Loan Party or any Subsidiary in connection with or to any other Loan Party or in or to any Subsidiary that is not a sale or other disposition of assets Loan Party (subject to the extent permitted limitations applicable to Capital Stock in a Foreign Subsidiary set forth in Section 5.11(a)); provided, that the aggregate amount of Investments by Section 7.6 Loan Parties in or in connection with to, and Guarantees by Loan Parties of Indebtedness of, any Subsidiary that is not a Loan Party shall not exceed at any time outstanding the settlement greater of obligations owing (i) $6,000,000 and (ii) fifteen percent (15.0%) of Consolidated EBITDA for the most recently ended four (4) Fiscal Quarter period for which financial statements have been delivered pursuant to it by financially troubled debtorsSections 5.1(a) or 5.1(b);
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors directors, managers or members of the Borrower any Loan Party or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 2,000,000 in the aggregate at any time and outstanding;
(iif) Hedging Transactions permitted by Section 7.10;
(g) Permitted Acquisitions;
(h) Investments consisting received in connection with the bankruptcy or reorganization of, or settlement of depositsdelinquent accounts and disputes with, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons suppliers, or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(i) Investments of any Person existing at the time such Person becomes a Subsidiary or consolidates, amalgamates or merges with Holdings or any Subsidiary (including in connection with an Acquisition or other Investment permitted hereunder); provided that such Investment was not made in contemplation of such Person becoming a Subsidiary or such consolidation, amalgamation or merger;
(j) Investments resulting from pledges or deposits described in clauses (c) or (d) of the definition of the term “Permitted Encumbrance”;
(k) receivables or other trade payables owing to Holdings or any Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms, provided that such trade terms may include such concessionary trade terms as Holdings or such Subsidiary deems reasonable under the circumstances;
(l) Investments in deposit accounts and securities accounts solely for Cash Equivalents opened in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments consisting of xxxx xxxxxxx money deposits in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on connection with a Pro Forma Basis for the then most recently ended Test Period; andPermitted Acquisition or other Investment permitted hereunder;
(n) Investments consisting of endorsements for collection or deposit in Unrestricted Subsidiaries the ordinary course of business;
(o) Guarantee obligations of any Loan Party or any Subsidiary in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any Subsidiary to the extent required in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States;
(p) Guarantees by any Loan Party or any Subsidiary of leases of real property (other than Capital Lease Obligations), contracts, or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(q) to the extent constituting Investments, Indebtedness permitted pursuant to Section 7.1(a)(xvi);
(r) other Investments in an aggregate outstanding amount not to exceed at an amount such that, after giving effect to the incurrence thereof on a Pro Forma Basis, the Consolidated Total Net Leverage Ratio is not greater than 2.00 to 1.00;
(s) the Closing Date Acquisition; and
(t) other Investments which in the aggregate in any time Fiscal Year do not exceed the greater of (i) $8,000,000 and (ii) twenty percent (20.0%) of Consolidated EBITDA for the most recently ended four (4) Fiscal Quarter period for which financial statements have been delivered pursuant to Sections 5.1(a) or 5.1(b). For purposes of determining compliance with this Section 7.4, (x) $25,000,000 an Investment need not be made solely by reference to one category of Investments described in Sections 7.4(a) through (t) above but may be made under any combination of such categories (including in part under one such category and in part under any other such category), (y) 7.5% in the event that an Investment (or any portion thereof) meets the criteria of Consolidated EBITDA calculated on a Pro Forma Basis for one or more of such categories of Investments described in clauses (a) through (t) above, the then most recently ended Test PeriodBorrower, in its sole discretion, may classify or may subsequently reclassify at any time such Investment (or any portion thereof) in any manner that complies with this covenant and (z) any Investment that is written down, written off or forgiven by Holdings or any of its Subsidiaries shall continue to count against any cap set forth in the clause or clauses of this Section 7.4 pursuant to which such Investment is permitted. Any Investment that exceeds the limits of any particular clause set forth above may be allocated amongst more than one of such clauses to permit the incurrence or holding of such Investment to the extent such excess is permitted as an Investment under such other clauses.
Appears in 1 contract
Samples: Credit Agreement (Biote Corp.)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called "Investments"), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person("Acquisitions"), or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower date hereof and its Restricted Subsidiaries may make and hold set forth on Schedule 7.4;
(b) Permitted Investments;
(ic) Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the Borrower and its Restricted aggregate principal amount of Indebtedness of Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) that are not Subsidiary Loan Parties that is Guaranteed by any Loan Party may make Investments shall be subject to the limitation set forth in any other Loan Party:
clause (cd) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerhereof;
(d) Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsanother Subsidiary;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and expenses;
(iif) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Hedging Agreements permitted by Section 7.10;
(g) Real estate investments or joint ventures that are typical in the Borrower's ordinary course of business;
(h) a Restricted Subsidiary Other Investments which in the aggregate do not exceed $5,000,000.00 in any fiscal year of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;Borrower; and
(i) without duplication Acquisitions not to exceed in the aggregate in any fiscal year of any other clause the Borrower 15% of this Section 7.4, so long as the Available Amount Conditions are satisfied Consolidated Net Worth (measured at the time end of such Investmentthe immediately preceding fiscal year); provided that Acquisitions in the aggregate in any fiscal year of the Borrower up to 20% of Consolidated Net Worth (measured at the end of the immediately preceding fiscal year) may be made after delivery to the Lender of pro forma consolidated financial statements, certified by the Borrower and its Restricted Subsidiaries may make Investments in an amount not reasonably acceptable to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower Lender, showing that after giving effect to such Acquisitions no Default or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount Event of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodDefault would exist.
Appears in 1 contract
Samples: Credit Agreement (Patriot Transportation Holding Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person(“Acquisitions”), or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower date hereof and its Restricted Subsidiaries may make and hold set forth on Schedule 7.4;
(b) Permitted Investments;
(ic) Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the Borrower and its Restricted aggregate principal amount of Indebtedness of Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) that are not Subsidiary Loan Parties that is Guaranteed by any Loan Party may make Investments shall be subject to the limitation set forth in any other Loan Party:
clause (cd) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerhereof;
(d) Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsanother Subsidiary;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and expenses;
(iif) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Hedging Agreements permitted by Section 7.10;
(g) Joint ventures that are typical in the Borrower’s ordinary course of business;
(h) a Restricted Subsidiary Other Investments which in the aggregate do not exceed $5,000,000.00 in any fiscal year of the Borrower; and
(i) Acquisitions not to exceed $10,000,000 in the aggregate in any fiscal year of the Borrower; provided that Acquisitions in excess of $10,000,000 in the aggregate in any fiscal year of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, made after delivery to the extent applicableLender of pro forma consolidated financial statements, certified by the Borrower and reasonably acceptable to the Lender, showing that after giving effect to such Restricted Subsidiary comply with the provisions of Section 5.12;
Acquisitions (i) without duplication of any other clause of this Section 7.4Borrower shall remain in compliance with the financial covenants set forth in Article 6 hereof on a pro forma basis, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (yii) 7.5% no Default or Event of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodDefault would exist.
Appears in 1 contract
Samples: Credit Agreement (Patriot Transportation Holding, Inc.)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries the Loan Parties to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-wholly owned Restricted Subsidiary of Borrower or Parent prior to such merger), ) any Equity InterestsCapital Stock, evidence of indebtedness Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances toto Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Personunit, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other the Loan Party:Parties);
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of Guarantees by the Borrower may be held and the Loan Parties constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were Section 7.1 and Liens permitted by Section 7.2 or other Guarantees by the Borrower and the Loan Parties of other obligations not made constituting Indebtedness incurred in connection with or anticipation the ordinary course of such Person becoming a Restricted Subsidiary of the Borrowerbusiness;
(d) Investments made by the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted Loan Parties and by Section 7.6 any Loan Party to the Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsanother Loan Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Investments made by the Borrower and its Restricted or any Loan Party in Foreign Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount invested from the date hereof not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period7,500,000;
(f) so long payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations expenses of the Total Net Leverage Ratio Loan Parties for accounting purposes and executed by a Responsible Officer that are made in the ordinary course of the Borrower certifying the requirements of this clause (f) have been metbusiness;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries the Loan Parties in the ordinary course of business; provided that the aggregate amount of all such loans and advances does not exceed $1,000,000 at any time outstanding;
(h) Investments received in connection with the disposition of any asset permitted under Section 7.6;
(i) Hedging Transactions permitted by Section 7.10;
(j) Investments permitted under Section 7.3, including Permitted Acquisitions and Investments of any Person existing at the time such Person becomes a Loan Party or consolidates or merges with a Loan Party (including in connection with a Permitted Acquisition) in connection with a transaction permitted hereby so long as such Investments were not made in contemplation of such Person becoming a Loan Party or of such consolidation of merger;
(k) extensions of trade credit in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers of the Loan Parties and similar Persons advances made in connection with the purchase of goods or services in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result received in connection with the bankruptcy or reorganization of, or settlement of Hedge Agreements permitted pursuant to Section 7.10delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(m) Receivables, security deposits or other trade payables owing to any Loan Party if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(n) deposit accounts;
(o) Investments in joint ventures the ordinary course of business consisting of endorsements for collection or deposit or lease, utility and other similar deposits and deposits with suppliers in an aggregate amount not to exceed at any time the greater ordinary course of business;
(xp) $25,000,000 Investments received as consideration in connection with dispositions permitted under Section 7.6;
(q) Investments acquired as a result of a Foreign Customer Finance Program Transaction and other Investments arising in connection with the compromise, settlement or collection of such Investments in the ordinary course of business;
(yr) 7.5% of Consolidated EBITDA calculated [reserved]; and
(s) other Investments, so long as, after giving effect thereto on a Pro Forma Basis Basis, (i) the Borrower is in compliance with the financial covenant set forth in Section 6.1, (ii) the Consolidated Leverage Ratio as of the most recent date for which financial statements have been delivered as required by Section 5.1(a) or (b), as applicable, is not greater than 2.75:1.00 and (iii) the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed of unused Revolving Commitments is at any time the greater of (x) least $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period15,000,000.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscapital stock, evidence of indebtedness Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called "Investments"), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 (excluding Investments in Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1;
(A) Investments made by the Borrower in or to Credit Services so long as (i) at least 98% of the Total Assets of Credit Services, are (x) accounts receivable purchased from or originated through the Borrower's retail sales of home furnishings in the United States or (y) current or deferred income taxes determined in accordance with GAAP and (ii) any Loan Party may make all Total Liabilities of Credit Services have arisen solely out its operations as a consumer finance business, (B) Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of made by the Borrower may be held in or to Havertys Capital and Havertys Enterprise for the payment of taxes and (C) Investments made by such Restricted Subsidiary; provided that such Investments were not made Credit Services in connection with or anticipation of such Person becoming a Restricted Subsidiary of the to Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances advances, or Guaranties of loans or advances, to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Subsidiary in the ordinary course of business, including, without limitation, those for travel, relocation and related expenses; provided, however, that the aggregate amount of all such loans, advances and Guaranties does not exceed $1,000,000 at any time;
(f) Asset Like Kind Exchanges permitted by Section 7.6;
(g) Hedging Obligations permitted by Section 7.10;
(h) a Restricted Subsidiary creation of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, Subsidiaries to the extent applicable, that the Borrower and such Restricted Subsidiary comply is in compliance with the provisions of Section 5.125.10;
(i) without duplication of any other clause of this Section 7.4, so long as Investments made pursuant to the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;Deferred Compensation Plan; and
(j) [reserved];
(k) other Investments by the Borrower or any Restricted Subsidiary that in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall do not exceed at $10,000,000 in any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodFiscal Year.
Appears in 1 contract
Samples: Revolving Credit Agreement (Haverty Furniture Companies Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth First Amendment Closing Effective Date and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Restricted Subsidiaries);
(b) cash and Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Guarantees by Borrower and its Restricted Subsidiary of the Borrower may be held Subsidiaries constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) Investments made by the Borrower in or to any Restricted Subsidiary and its by any Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsanother Restricted Subsidiary, including, without limitation, Investments resulting in a Person becoming a Restricted Subsidiary;
(e) so long as (x) no Default or Event of Default has occurred and is continuing or would result therefromtherefrom and (y) the Borrower and the Restricted Subsidiaries demonstrate compliance with the financial covenants set forth in Article VI calculated on a Pro Forma Basis after giving effect thereto, (i) Investments by the Borrower or any Restricted Subsidiary in or to, and Guarantees by the Borrower or any Restricted Subsidiary of Indebtedness of, any Subsidiary that is not (or will not become simultaneously with such Investment) a Restricted Subsidiary (excluding all such Investments and Guarantees existing on the Closing Date) and (ii) Investments in or to entities that are not Subsidiaries, including independent sales organizations and other strategic partners (excluding all such Investments existing on the Closing Date), in the case of clauses (i) and (ii), in an aggregate amount during the term of this Agreement not to exceed the sum of (A) $25,000,000 plus (B) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries may make Investments for the twelve month period ending as of the most recently completed Fiscal Quarter for with financial statements and the related Compliance Certificate were delivered in accordance with Section 5.1(a) or (andb), thereafteras applicable; (the “Investment Basket”); provided, may hold such Investments) in an that, as of any date of determination, if the aggregate amount not of Investments made pursuant to exceed this clause (e) exceeds the greater Investment Basket solely as a result of (x) $120,000,000 and (y) 33.0% of a decline in Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodas of such date of determination, such excess shall not in and of itself result in an Event of Default;
(f) so long as (x) no Default or Event of Default has occurred and is continuing or would result therefrom, therefrom and (y) the Borrower and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto Restricted Subsidiaries demonstrate compliance with the financial covenants set forth in Article VI calculated on a Pro Forma Basis for the then most recently ended Test Periodafter giving effect thereto, the Borrower and Borrower’s or one of its Restricted Subsidiaries may make additional Investments Subsidiaries’ purchase (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f)either in cash, through the Borrower shall deliver to the Administrative Agent incurrence of Indebtedness otherwise permitted hereunder, or a Compliance Certificate setting forth in reasonable detail the calculations combination thereof) of the Total Net Leverage Ratio and executed by a Responsible Officer remaining Capital Stock of the Borrower certifying the requirements of this clause (f) have been metPowerPay, Inc.;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances made after the Closing Date to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travelbusiness; provided, entertainmenthowever, relocation and related expenses in an that the aggregate amount of all such loans and advances does not to exceed $15,000,000 3,000,000 at any time and time;
(iih) Hedging Transactions permitted by Section 7.10;
(i) Investments consisting of deposits, expense prepayments, extensions of credit in the nature of accounts receivable arisingor notes receivable arising from the grant of trade credit in the ordinary course of business, trade debt granted and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits extended to customers and similar Persons suppliers in the ordinary course of business;
(hj) a Restricted Subsidiary of the Borrower may be established or created Investments (but not capitalized unless otherwise permitted under this Section 7.4including debt obligations and Capital Stock) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply received in connection with the provisions bankruptcy or reorganization of Section 5.12suppliers and customers or in settlement of delinquent obligations of, or other disputes with, customers and suppliers arising in the ordinary course of business or upon the foreclosure with respect to any secured Investment;
(k) Investments in the ordinary course of business consisting of endorsements for collection or deposit under Article 3 of the Uniform Commercial Code;
(l) a loan to Blueapple Inc. to be used for the payment of certain payroll taxes resulting from the MDP Equity Investment so long as such loan (i) does not exceed an aggregate principal amount of $10,000,000 and (ii) has a term of no more than six (6) months; and
(m) without duplication of any other clause clauses in this Section, other Investments that do not exceed $4,000,000 in the aggregate at any time outstanding, determined as of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time date of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period.
Appears in 1 contract
Samples: Credit Agreement and Security Agreement (EVO Payments, Inc.)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries the Loan Parties to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-wholly owned Restricted Subsidiary of Borrower or Parent prior to such merger), ) any Equity InterestsCapital Stock, evidence of indebtedness Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances toto Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Personunit, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other the Loan Party:Parties);
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of Guarantees by the Borrower may be held and the Loan Parties constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were Section 7.1 and Liens permitted by Section 7.2 or other Guarantees by the Borrower and the Loan Parties of other obligations not made constituting Indebtedness incurred in connection with or anticipation the ordinary course of such Person becoming a Restricted Subsidiary of the Borrowerbusiness;
(d) Investments made by the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted Loan Parties and by Section 7.6 any Loan Party to the Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsanother Loan Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Investments made by the Borrower and its Restricted or any Loan Party in Foreign Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount invested from the date hereof not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period2,000,000;
(f) so long payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations expenses of the Total Net Leverage Ratio Loan Parties for accounting purposes and executed by a Responsible Officer that are made in the ordinary course of the Borrower certifying the requirements of this clause (f) have been metbusiness;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries the Loan Parties in the ordinary course of business; provided that the aggregate amount of all such loans and advances does not exceed $200,000 at any time outstanding;
(h) Investments received in connection with the disposition of any asset permitted under Section 7.6;
(i) Hedging Transactions permitted by Section 7.10;
(j) Investments permitted under Section 7.3, including Permitted Acquisitions and Investments of any Person existing at the time such Person becomes a Loan Party or consolidates or merges with a Loan Party (including in connection with a Permitted Acquisition) in connection with a transaction permitted hereby so long as such Investments were not made in contemplation of such Person becoming a Loan Party or of such consolidation of merger;
(k) extensions of trade credit in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers of the Loan Parties and similar Persons advances made in connection with the purchase of goods or services in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result received in connection with the bankruptcy or reorganization of, or settlement of Hedge Agreements permitted pursuant to Section 7.10delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(m) Investments Receivables, security deposits or other trade payables owing to any Loan Party if created or acquired in joint ventures the ordinary course of business and payable or dischargeable in an aggregate amount not to exceed at any time the greater of accordance with customary trade terms;
(xn) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Perioddeposit accounts; and
(no) other Investments which in Unrestricted Subsidiaries in an the aggregate amount do not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period2,500,000.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will notMake, permit or hold any Investments other than:
(a) Investments in the stock of Subsidiaries of Parent and Receivables Subsidiaries of Parent existing as of the Closing Date or existing as Subsidiaries of Parent immediately prior to the making of such Investment, and will not permit any Investments in the form of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant loans and advances by Borrower to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness Guarantor;
(b) Investments in the stock or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances to, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute is engaged in a business unit permitted by Section 7.10 hereof; provided, that before and after giving effect to such Investment and any Funded Debt incurred by Borrower or division such Subsidiary in connection with making such Investment, (x) Borrower is and will be in compliance with Section 6.08 hereof and if the Investment is greater than $125,000,000, Borrower has delivered pro forma financial covenants calculations demonstrating such compliance, in such detail and using such form of such another Personpresentation of historical and forecasted financial information as may be satisfactory to the Administrative Agent (based on the projected Consolidated Interest Expense or Funded Debt, or purchase or acquire all or substantially all of as the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingcase may be, for the avoidance immediately succeeding four fiscal quarters (including Consolidated Interest Expense incurred a result of doubt, the Taurus Acquisitionincurrence of any such Funded Debt) and the historical Consolidated EBITDA (including the Consolidated EBITDA of such Person)); provided, that:
(ay) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 no other Default or Event of Default exists hereunder and (iiz) any Loan Party may make Investments in any other Loan Party:as a result of such Investment, such Person becomes a Subsidiary of Borrower, and promptly complies with Section 6.09 if it becomes a Material Subsidiary of Borrower;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary marketable direct obligations of the Borrower may be held United States or any agency thereof, or obligations guaranteed by such Restricted Subsidiary; provided that such Investments were not made the United States or any agency thereof, in connection with or anticipation of such Person becoming a Restricted Subsidiary each case supported by the full faith and credit of the BorrowerUnited States and maturing within one year from the date of creation thereof;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Indebtedness created in the ordinary course of business for travelbusiness, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting the endorsement of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons negotiable instruments in the ordinary course of business;
(he) commercial paper issued by corporations, each of which has a Restricted Subsidiary consolidated net worth of not less than $500,000,000, and conducts a substantial portion of its business in the Borrower may be established United States of America, maturing no more than 365 days from the date of acquisition thereof and having as at any date of determination a rating of P-1, P-2 or created (but not capitalized unless otherwise permitted under this Section 7.4) so long asP-3 from Standard & Poor’s or a rating of X-0, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12X-0 or A-3 from Moody’s;
(if) money market or similar depository accounts, certificates of deposit or bankers acceptances, in each case redeemable upon demand or maturing within one year from the date of acquisition thereof, issued by commercial banks incorporated under the laws of the United States of America or any state thereof or the District of Columbia, provided (x) each such bank has at any date of determination combined capital and surplus of not less than $1,000,000,000 and a rating of its long-term debt of at least A by Standard & Poor’s or at least A by Moody’s or a long-term deposit rating of at least A issued by Standard & Poor’s or at least A issued by Moody’s and (y) the aggregate amount of all such certificates of deposit issued by such bank are fully insured at all times by the Federal Deposit Insurance Company;
(g) advances and loans to officers and employees of the Consolidated Companies made in the ordinary course of business, including without duplication limitation, loans to executives for the purchase of any other clause stock of this Section 7.4, so long as Parent pursuant to a program established by the Available Amount Conditions are satisfied at the Board of Directors or a committee thereof from time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments to time in an amount not to exceed the Available Amount$15,000,000;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(mh) Investments in joint ventures in an aggregate amount during any fiscal year of Parent not to exceed at any time an amount equal to ten percent (10%) of Parent’s Consolidated Net Worth as of the greater end of (x) $25,000,000 and (y) 7.5% the immediately preceding fiscal year of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodParent; and
(ni) Investments in Unrestricted Subsidiaries (other than those permitted by paragraphs (a) through (h) above) in an aggregate amount during any fiscal year of Parent not to exceed at any time an amount equal to five (5%) percent of Parent’s Consolidated Net Worth as of the greater end of (x) $25,000,000 and (y) 7.5% the immediately preceding fiscal year of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodParent.
Appears in 1 contract
Investments, Loans, Etc. The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-wholly owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guaranty any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Effective Date and set forth on Schedule 7.4 5.16 (including Investments in Subsidiaries);
(b) Permitted Investments;
(c) Guaranties of Debt under (i) the Franchise Facility and (ii) other Indebtedness in an amount not to exceed $10,000,000 in the aggregate at any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the one time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borroweroutstanding;
(d) Investments made by the Borrower and its Company or any Restricted Subsidiaries may hold Investments constituting non-cash proceeds received Subsidiary in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 Company or in connection with the settlement of obligations owing to it by financially troubled debtorsany Restricted Subsidiary;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower Company or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses expenses;
(f) Hedging Agreements permitted by Section 10.15;
(g) Investments in an aggregate amount franchise operators through the Franchise Partner Program; provided, that such Investments made pursuant to this subsection (g) together with Investments made pursuant to subsection (h) below shall not to exceed $15,000,000 10,000,000 in the aggregate at any one time and outstanding;
(iih) Investments consisting in franchise operators through the Traditional Franchisee program pursuant to the purchase option agreements entered into with those operators; provided, that such Investments made pursuant to this subsection (h) together with Investments made pursuant to subsection (g) above shall not exceed $10,000,000 in the aggregate at any one time outstanding;
(i) Investments received in settlement of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Debt created in the ordinary course of business;
(hj) a Acquisitions by the Company or any Restricted Subsidiary meeting the following requirements (each such Acquisition constituting a “Permitted Acquisition”):
(1) as of the Borrower may date of the consummation of such Acquisition, no Default or Event of Default shall have occurred and be established continuing or created (but not capitalized unless otherwise permitted under this Section 7.4) so long aswould result from such Acquisition, and the representations and warranties contained herein shall be true both before and after giving effect to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12Acquisition;
(i2) without duplication such Acquisition is consummated on a non-hostile basis pursuant to a negotiated acquisition agreement approved by the board of directors or other applicable governing body of the seller or entity to be acquired, and no material challenge to such Acquisition shall be pending or threatened by any other clause shareholder or director of this Section 7.4, so long as the Available Amount Conditions are satisfied at seller or entity to be acquired;
(3) the time business to be acquired in such Acquisition is similar or related to one or more of such Investment, the Borrower lines of business in which the Company and its Restricted Subsidiaries may make Investments in an amount not to exceed are engaged on the Available AmountEffective Date;
(j4) [reserved]as of the date of consummation of such Acquisition, all material approvals required in connection therewith shall have been obtained;
(k5) Investments by after giving effect to such Acquisition, the Borrower or aggregate consideration (including cash and non-cash consideration, any Restricted Subsidiary assumption of Indebtedness, deferred purchase price and any earn-out obligations) paid for all Acquisitions in the Borrower or any Restricted Subsidiaryfiscal year shall not exceed $35,000,000; provided, however that however, if subsequent to the aggregate amount Effective Date, the Adjusted Total Debt to EBITDAR Ratio is less than 3.0 to 1.0 as of Investments pursuant the last day of two consecutive fiscal quarters, the annual basket provided for above shall no longer apply so long as (A) the Adjusted Total Debt to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated EBITDAR Ratio on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant after giving effect to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not any such Acquisition is less than 3.0 to exceed at any time the greater of (x) $25,000,000 1.0 and (yB) 7.5% in the case where after giving effect to any such Acquisition, the aggregate consideration paid for all Acquisitions in the applicable fiscal year exceeds $5,000,000, the Company shall have delivered to each holder of Consolidated EBITDA calculated Notes not less than five days prior to the consummation of such Acquisition a pro form compliance certificate demonstrating that the Adjusted Total Debt to EBITDAR Ratio on a Pro Forma Basis for (after giving effect to any such Acquisition and all extensions of credit funded in connection therewith as if made on the then most recently ended Test Periodfirst day of the applicable period) is less than 3.0 to 1.0; and
(n6) Investments in Unrestricted Subsidiaries the case where after giving effect to any Acquisition, the aggregate consideration for all Acquisitions occurring in an aggregate amount the applicable fiscal year is greater than $5,000,000, not less than five days prior to exceed at any time the greater consummation of (x) $25,000,000 and (y) 7.5% such Acquisition, the Company shall have delivered to each holder of Consolidated EBITDA calculated Notes, a pro forma compliance certificate, which shall reflect that, on a Pro Forma Basis Basis, the Company would have been in compliance with the financial covenants set forth in Sections 10.1, 10.2, 10.3 and 10.11 for the then four fiscal quarter period reflected in the compliance certificate most recently ended Test Perioddelivered to the holders of Notes pursuant to Section 7.2(a) prior to the consummation of such Acquisition (giving effect to such Acquisition and all extensions of credit funded in connection therewith as if made on the first day of such period); and
(7) Investments in Equity Interests of the Company to the extent permitted under Section 10.13. Investments under this Section 10.12 shall not be permitted if, before or after giving effect to the making of such Investment, a Default or an Event of Default has occurred and is continuing.
Appears in 1 contract
Investments, Loans, Etc. The Borrower Borrowers will not, and will not permit any of its Restricted their Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) Accounts receivable of any Investments Borrower or any Subsidiary arising from advances made by them in the ordinary course of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerbusiness;
(d) cash deposits made in the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition ordinary course of assets business pursuant to the extent permitted by Section 7.6 requirements of government agencies or in connection with the settlement of obligations owing to it by financially troubled debtorspublic utilities;
(e) so long as no Default or Event advances resulting in the ordinary course of Default has occurred business from overdrafts in connection with the ACH Programs and is continuing or would result therefrom, the Borrower other similar programs and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis arrangements for the then most recently ended Test Periodprovision of ACH Services with parties other than Lenders and in connection with the ARC Transmission Agreement;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed Guarantees constituting Indebtedness permitted by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been metSection 7.1;
(g) so long Guarantees of obligations that do not constitute Indebtedness, to the extent guaranteed in the ordinary course of business;
(h) Investments made by any Borrower or any Subsidiary to or in any other Borrower or Subsidiary; provided, further, that to the extent any Collateral is transferred to a Borrower or Subsidiary that is not a party to the Security Agreement or Intellectual Property Security Agreement, such Person shall (i) have joined the Security Agreement and the Intellectual Property Security Agreement, pursuant to agreements in form and substance satisfactory to the Collateral Agent, and (ii) delivered to the Collateral Agent (aa) UCC financing statements, amendments and other applicable documents under the laws of the jurisdictions with respect to the perfection of the Liens granted under such agreements, as requested by the Collateral Agent in order to perfect such Liens, duly authorized or executed by such Person, (bb) copies of favorable UCC, tax, judgment and fixture lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of such Person, indicating that there are no Default prior Liens on any of the Collateral other than Permitted Encumbrances, (cc) a Perfection Certificate duly completed and executed by such Person, (dd) a certificate of the Secretary or Event Assistant Secretary of Default has occurred such Person, attaching and certifying copies of its certificate of incorporation, bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the foregoing documents to which it is continuing a party and certifying the name, title and true signature of each officer of such Person executing such documents, (ee) certificates of good standing or would result therefromexistence, as may be available from the Secretary of State of the jurisdiction of organization of such Person and each other jurisdiction where such Person is required to be qualified to do business as a foreign corporation; and (ff) a favorable written opinion of Axxxxx & Bird, LLP, counsel to such Person, addressed to the Collateral Agent, the Borrower Administrative Agent and its Restricted Subsidiaries may make each of the Lenders, and covering such matters relating to such Person, the foregoing documents and the transactions contemplated thereby as the Administrative Agent or the Required Lenders shall reasonably request;
(i) loans or advances to employees, officers or directors of the any Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 2,500,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amounttime;
(j) [reserved]Hedging Obligations permitted by Section 7.9;
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted SubsidiaryPermitted Acquisitions; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;and
(l) Other Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments which in joint ventures in an the aggregate amount do not to exceed $50,000,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-wholly owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and 8.3 (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) Guarantees of Indebtedness in an amount not to exceed $10,000,000 in the aggregate at any Investments of a Person in existence at the one time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borroweroutstanding;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received made by any Loan Party in connection with a sale or to any other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtorsLoan Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and expenses;
(iif) Hedging Agreements permitted by Section 8.8;
(g) Investments consisting received in settlement of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Indebtedness created in the ordinary course of business;
(h) Acquisitions by any Loan Party meeting the following requirements (each such Acquisition constituting a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;“Permitted Acquisition”):
(i) without duplication as of any other clause the date of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time consummation of such InvestmentAcquisition, no Default or Event of Default shall have occurred and be continuing or would result from such Acquisition, and the representations and warranties contained herein shall be true both before and after giving effect to such Acquisition;
(ii) such Acquisition is consummated on a non-hostile basis pursuant to a negotiated acquisition agreement approved by the board of directors or other applicable governing body of the seller or entity to be acquired, and no material challenge to such Acquisition shall be pending or threatened by any shareholder or director of the seller or entity to be acquired;
(iii) the business to be acquired in such Acquisition is similar or related to one or more of the lines of business in which the Borrower and its Restricted Subsidiaries may make are engaged on the Closing Date;
(iv) as of the date of consummation of such Acquisition, all material approvals required in connection therewith shall have been obtained;
(v) the Borrower shall have delivered to the Administrative Agent not less than five (5) days prior to the consummation of such Acquisition a pro forma compliance certificate demonstrating that the Adjusted Total Debt to EBITDAR Ratio on a Pro Forma Basis (after giving effect to such Acquisition) is less than 3.75:1.00; and
(vi) the Borrower has at least $25,000,000 of availability under the Aggregate Revolving Commitments after giving effect to such Acquisition.
(i) Investments in an amount not Equity Interests of the Borrower to exceed the Available Amountextent permitted under Section 8.4;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed $10,000,000 in the aggregate at any one time outstanding. Investments under Section 8.3 shall not be permitted if, before or after giving effect to the greater making of (x) $25,000,000 such Investment, a Default or an Event of Default has occurred and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodis continuing.
Appears in 1 contract
Investments, Loans, Etc. The Upon and after the occurrence of a Leverage Ratio Triggering Event, the Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:Subsidiaries existing on the date hereof;
(b) cash and Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guarantees constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) (i) Investments by any Loan Party in any Loan Party, (ii) Investments by any Subsidiary that is not a Loan Party in any other Subsidiary that is not a Loan Party, (iii) Investments by any Subsidiary that is not a Loan Party in any Loan Party; provided that if such Investment is in the form of an intercompany loan, the obligations of such Loan Party under any such intercompany loan shall be evidenced by the Intercompany Note, (iv) Investments by any Loan Party in any Subsidiary that is not a Loan Party; provided that the aggregate outstanding amount of all such Investments permitted pursuant to this clause (iv), shall not exceed the greater of (A) $100,000,000 or (B) an amount equal to 10% of the total assets of the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received determined on a consolidated basis, as of any date of determination at any time outstanding; and provided further that if such Investment is in connection with a sale or other disposition the form of assets to an intercompany loan, the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it such Loan Party under any such intercompany loan shall be evidenced by financially troubled debtorsthe Intercompany Note and such Investments shall be subject to the limitations contained in Section 7.1(d);
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans Loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 4,000,000 at any time time;
(f) Restricted Payments permitted by Section 7.5;
(g) Permitted Acquisitions (and Investments acquired in connection with a Permitted Acquisition); provided, however, that the aggregate value of the sum of current and deferred cash and securities to be paid and issued, plus Indebtedness paid or assumed, in connection with Permitted Acquisitions involving the acquisition of a minority share of the capital stock or other equity interests of a Person or business shall not exceed $10,000,000 in any Fiscal Year, unless otherwise approved by the Administrative Agent and the Required Lenders;
(h) Hedging Transactions permitted by Section 7.10;
(i) (A) endorsements for collection or deposit in the ordinary course of business and consistent with past practice, and (iiB) extensions of trade credit (other than to Affiliates of the Borrowers) arising or acquired in the ordinary course of business and consistent with past practice;
(j) Investments consisting of deposits(i) accounts receivables incurred in the ordinary course of business and consistent with past practice, expense prepayments(ii) negotiable instruments held for collection in the ordinary course of business and consistent with past practice, accounts receivable arising(iii) lease, trade debt granted utility and other credits extended to customers and similar Persons deposits in the ordinary course of business;
, and (hiv) a Restricted Subsidiary securities of trade creditors or customers that are received in settlement of bona fide disputes or pursuant to any plan of reorganization or liquidation or similar arrangement upon the Borrower may be established bankruptcy or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time insolvency of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved]trade creditors or customers;
(k) Investments representing consideration for asset sales permitted by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodSection 7.6;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscapital stock, partner or limited liability company interests or other ownership interests, evidence of indebtedness Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Restatement Date and set forth on Schedule 7.4 (including Investments in Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1;
(d) repurchase of Senior Notes (to the extent permitted by the Indenture and applicable securities laws), so long as, before and after giving effect thereto, the Borrower shall be in compliance with the financial covenants set forth in Article VI and no other Default or Event of Default shall have occurred and be continuing at the time such repurchase is effected;
(e) Investments made by the Borrower in or to any Subsidiary and by any Subsidiary to the Borrower or in or to another Subsidiary; provided, that (i) the aggregate amount of Investments by Loan Parties in or to, and Guarantees by Loan Parties of Indebtedness of, any Subsidiary that is not a Guarantor (including all such Investments and Guarantees existing on the Restatement Date), shall not exceed $5,000,000 at any time outstanding, and (ii) any Loan Party may make Investments in Acquisition giving rise to any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets Investment shall have been permitted pursuant to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period7.10;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, employees and officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary made in the ordinary course of business for traveland not in excess of amounts customarily and historically loaned or advanced by the Borrower to such employees and officers; provided, entertainmenthowever, relocation and related expenses in an that the aggregate amount of all such loans and advances does not to exceed $15,000,000 2,500,000 at any time and outstanding;
(iig) Hedging Obligations permitted by Section 7.11;
(h) Investments consisting received in settlement of deposits, expense prepayments, accounts receivable arising, debt created in the ordinary course of business; and
(i) extension of trade debt granted and other credits extended to customers and similar Persons credit in the ordinary course of business;
(hj) a Restricted Subsidiary Investments in assets held under non-qualified plans and deferred compensation arrangements for certain members of management and other employees as disclosed from time to time in the notes to the Borrower’s consolidated financial statements as filed by the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower Securities and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved]Exchange Commission;
(k) Investments by purchases of Capital Lease Debt Obligations permitting the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiaryits Subsidiaries to offset and reduce their related Capital Lease Obligations; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;and
(l) Investments arising in fixed income assets by GCIC consistent with customary practices of portfolio management on the part of so-called “captive” insurance companies of comparable size and scope of activities as a result of Hedge Agreements permitted pursuant to Section 7.10;GCIC; and
(m) Investments in joint ventures not otherwise permitted by the preceding clauses of this Section 7.4 in an aggregate amount not to exceed $10,000,000 at any one time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding.
Appears in 1 contract
Investments, Loans, Etc. The Holdings and the Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including"INVESTMENTS"), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower date hereof and its Restricted Subsidiaries may make and hold set forth on SCHEDULE 7.4 (including Investments in Subsidiaries);
(b) extensions of trade credit in the ordinary course of business;
(c) Permitted Investments;
(id) Permitted Acquisitions, and all Investments of any Person acquired in a Permitted Acquisition;
(e) advances in the Borrower and ordinary course of business to any independent contractor performing services for Holdings, any of its Restricted Subsidiaries may hold or any of their agents not to exceed $20,000,000 in the Investments existing on aggregate at any time outstanding maturing not later than seven (7) years after the Fourth Amendment Closing Date and set forth on Schedule 7.4 and incurrence thereof;
(iif) Guarantees constituting Indebtedness permitted by SECTION 7.1; PROVIDED, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Loan Party may make shall be subject to the limitation set forth in clauses (h) and (i) below;
(g) Investments made by Holdings or any of its Subsidiaries in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(dh) Investments made by any Holdings or any of its Subsidiaries in any Person other than a Loan Party; PROVIDED, that the Borrower aggregate amount of such Investments by Holdings or any of its Subsidiaries in or to, and Guarantees by Holdings or any of its Restricted Subsidiaries may hold of Indebtedness of any Person that is not a Loan Party (including all such Investments constituting non-cash proceeds received and Guarantees existing on the Closing Date, but excluding the Investments permitted in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtorsclause (i) below), shall not exceed $30,000,000 at any time outstanding;
(ei) so long as no Default Investments made by Holdings or Event any of Default has occurred and is continuing its Subsidiaries in Transplace or would result therefromTrans-Mex; PROVIDED, that the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount of such Investments in, and Guarantees by Loan Parties of Indebtedness owed by, Transplace or Trans-Mex (including all such Investments and Guarantees existing on the Closing Date, shall not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period25,000,000 at any time outstanding;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (ij) loans or advances to employees, officers or directors of the Borrower Holdings or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; PROVIDED, HOWEVER, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 5,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved]time;
(k) Investments by the Borrower in notes and other securities received in full or any Restricted Subsidiary partial satisfaction of overdue debts and accounts payable in the Borrower ordinary course of business and for amounts which, individually or any Restricted Subsidiary; providedin the aggregate, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall do not exceed $10,000,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding;
(l) Investments arising as a result of Hedge Agreements Hedging Transactions permitted pursuant to Section by SECTION 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater treasury stock of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodHoldings; and
(n) other Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed $10,000,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding.
Appears in 1 contract
Samples: Revolving Credit Agreement (Swift Transportation Co Inc)
Investments, Loans, Etc. The Borrower will not, and will not ------------------------ permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscapital stock, partner or limited liability company interests or other ownership interests, evidence of indebtedness Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “"Investments”) other than Investments constituting Permitted Acquisitions (including"), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 (including Investments in ------------- Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1; -----------
(d) repurchase Senior Notes (to the extent permitted by the Indenture and applicable securities laws) for aggregate consideration not exceeding $50,000,000 in any calendar year, so long as, before and after giving effect thereto, the Borrower shall be in compliance with the financial covenants set forth in Article VI and no other Default or Event of Default shall have occurred and be continuing at the time such repurchase is effected;
(e) Investments made by the Borrower in or to any Subsidiary and by any Subsidiary to the Borrower or in or to another Subsidiary; provided, that (i) -------- the aggregate amount of Investments by Loan Parties in or to, and Guarantees by Loan Parties of Indebtedness of, any Subsidiary that is not a Guarantor (including all such Investments and Guarantees existing on the Closing Date), shall not exceed $5,000,000 at any time outstanding, and (ii) any Loan Party may make Investments in Acquisition giving rise to any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted SubsidiaryInvestment shall have been permitted pursuant to Section ------- 7.10; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;----
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, employees and officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary made in the ordinary course of business for traveland not in excess of amounts customarily and historically loaned or advanced by the Borrower to such employees and officers; provided, entertainmenthowever, relocation and related expenses in an that the aggregate amount of all such -------- ------- loans and advances does not to exceed $15,000,000 2,500,000 at any time and outstanding;
(iig) Hedging Obligations permitted by Section 7.11; ------------
(h) Investments consisting received in settlement of deposits, expense prepayments, accounts receivable arising, debt created in the ordinary course of business; and
(i) extension of trade debt granted and other credits extended to customers and similar Persons credit in the ordinary course of business;
(hj) a Restricted Subsidiary Investments in assets held under non-qualified plans and deferred compensation arrangements for certain members of management and other employees as disclosed from time to time in the notes to the Borrower's consolidated financial statements as filed by the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower Securities and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];Exchange Commission; and
(k) Investments not otherwise permitted by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount preceding clauses of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures 7.4 in an aggregate amount not to exceed $10,000,000 at any one time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period----------- outstanding.
Appears in 1 contract
Samples: 3 Year Revolving Credit Agreement (Dollar General Corp)
Investments, Loans, Etc. The No Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness indebtedness, Capital Stock or other equity interests or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Personunit, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted InvestmentsCash Equivalents;
(ib) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale Travel advances or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) advances in an aggregate amount not to exceed in aggregate amount for all Borrowers of $750,000 at any one time outstanding, which are made to any employee of a Borrower in the greater ordinary course of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodsuch Borrower’s business;
(fc) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Hedging Agreements entered into in the ordinary course of business for travel, entertainment, relocation and related expenses to hedge or mitigate risks to which a Borrower is exposed in an aggregate amount not to exceed $15,000,000 at any time and the conduct of its business or the management of its liabilities;
(iid) Investments consisting in deposit accounts in which the Administrative Agent has been granted a security interest under the Loan Documents;
(e) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of depositssuppliers and customers and in settlement of delinquent obligations of, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to disputes with, customers and similar Persons suppliers arising in the ordinary course of business;
(f) Receivables owing to a Borrower created or acquired in the ordinary course of business and payable on customary trade terms of such Borrower;
(g) Other Investments so long as the aggregate amount thereof (determined as the amount originally advanced, loaned or otherwise invested (without giving effect to any write-downs or write-offs thereof), less any realized returns on the respective investment not to exceed the original amount invested) at no time outstanding exceeds $500,000 in the aggregate for all Borrowers;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12Permitted Acquisitions;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available AmountPermitted Teaming Agreements;
(j) [reserved];Existing Investments described on Schedule 6.8; and
(k) Investments by in new Subsidiaries, other than a CFC, which become Borrowers in accordance with the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount terms of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodAgreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Global Defense Technology & Systems, Inc.)
Investments, Loans, Etc. The Borrower Borrowers will not, and will not permit any of its Restricted their respective Subsidiaries to, purchase, repurchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments and cash (including demand deposit accounts) and Cash Equivalents;
(c) Guarantees by PRGX and its Subsidiaries constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Investments of a Person Loan Party shall be subject to the limitation set forth in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerclause (d) hereof;
(d) Investments made by PRGX in or to any Subsidiary and by any Subsidiary to PRGX or in or to another Subsidiary; provided, that the Borrower aggregate amount of Investments by Loan Parties in or to (including Guarantees by Loan Parties of Indebtedness of) any Subsidiary that is not a Loan Party (excluding all such Investments and its Restricted Guarantees listed on Schedule 7.4), shall not exceed $5,000,000 in the aggregate at any time outstanding (with such $5,000,000 being measured as (A) the outflow of cash from the Loan Parties to other Subsidiaries may hold Investments constituting nonthat are not Loan Parties, excluding cash arm’s-cash proceeds received in connection with a sale or length payments for services rendered by such other disposition of assets Subsidiaries that are not Loan Parties to the extent permitted by Section 7.6 or in connection with Loan Parties, net of (B) the settlement inflow of obligations owing cash, including via transfer pricing, from the other Subsidiaries that are not Loan Parties to it by financially troubled debtorsthe Loan Parties);
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans Loans or advances to employees, officers or directors of the any Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses, and for commission advances; provided, however, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 250,000 at any time time;
(f) Hedging Transactions permitted by Section 7.10;
(g) Permitted Acquisitions;
(h) To the extent permitted by Section 7.5(iii), PRGX’s redemption, purchase or repurchase of its common stock pursuant to open-market purchases, privately negotiated transactions or otherwise;
(i) Guarantees of real estate and (ii) Investments consisting personalty leases of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Subsidiaries in the ordinary course of business;
(hj) a Restricted Subsidiary Extensions of trade credit (to Subsidiaries and to third party customers) in the Borrower may be established or created ordinary course of business, not exceeding ninety (but not capitalized unless otherwise permitted under this Section 7.490) so long as, to days from the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12original date due;
(ik) without duplication of any other clause of this Transactions permitted under Section 7.3 (unless expressly required to constitute a Permitted Investment or to otherwise require compliance with Section 7.4, so long as );
(l) Transactions permitted under Section 7.6 (unless expressly required to constitute a Permitted Investment or to otherwise require compliance with Section 7.4);
(m) To the Available Amount Conditions are satisfied at the time of such Investmentextent permitted by Section 5.11, the Borrower and its Restricted Subsidiaries formation of Subsidiaries, provided, however, that after the Closing Date, no Foreign Subsidiary may make form a Domestic Subsidiary;
(n) Extraordinary Investments in connection with the settlement or compromise of Accounts, in an amount not to exceed $100,000 in the aggregate outstanding at any time without Administrative Agent’s prior written consent; and
(o) Other Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary $100,000 in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed outstanding at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodtime.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not Make or permit to remain ----------------------- outstanding any of its Restricted Subsidiaries to, purchase, hold loan or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances advance to, or make any investment guarantee, endorse, or any other interest inotherwise be or become contingently liable, directly or indirectly in connection with obligations, stock or dividends of any other Person, or purchase hold any Investments in any Person, or otherwise acquire (in one transaction or a series of transactions) hold any assets of any Subsidiaries, other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatthan:
(a) Investments in Subsidiaries, all of which Subsidiaries shall be (i) Subsidiaries in existence on the date hereof, (ii) other home healthcare companies having core business comparable to that of the Borrower and its Restricted Subsidiaries may make which companies and hold Permitted Investments;
the terms of acquisition shall be acceptable to the Agent and the Required Lenders, or (iiii) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and primary care physician practices; provided, however, nothing in this Section 8.4 shall be deemed to authorize or prohibit an investment pursuant to this subsection (iia) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of entity that is not a Person in existence Subsidiary and a Guarantor prior to such investment and provided, further, however, that at the time such Person becomes a Restricted Subsidiary of the Borrower may be held request by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received for a Borrowing in connection with a sale the amount of $7,000,000 or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis more for the then most recently ended Test Period;
(f) so long as no Default or Event purpose of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f)acquisition, the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth pro-forma financial statement on a consolidated basis satisfactory to the Agent and the Required Lenders in reasonable detail the calculations of the Total Net Leverage Ratio form and executed by a Responsible Officer of content, which shall show the Borrower certifying in compliance, as at the requirements effective date of such acquisition, with all financial covenants and ratios contained in this clause (f) have been metAgreement;
(gb) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors direct obligations of the Borrower United States or any agency thereof, or obligations guaranteed by the United States or any agency thereof, in each case supported by the full faith and credit of its Restricted Subsidiaries in the ordinary course United States and maturing within one year from the date of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of businesscreation thereof;
(hc) commercial paper, bankers acceptances or corporate obligations maturing within one year from the date of creation thereof having a Restricted Subsidiary rating at the time as of which any determination is made of P-1 (or higher) according to Moody's or as A-1 (or higher) according to Standard & Poor's corporation or the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12equivalent thereof if by another nationally recognized credit rating agency;
(id) without duplication time deposits maturing within one year from the date of creation thereof, including certificates of deposit issued by any Lender and any office located in the United States of any other clause bank or trust company which is organized under the laws of this Section 7.4the United States or any state thereof and has total assets aggregating at least $500,000,000, so long as the Available Amount Conditions are satisfied at the time including without limitation, any such deposits in Eurodollars issued by a foreign branch of any such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amountbank or trust company;
(j) [reserved];
(ke) Investments made by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodPlans; and
(nf) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodIntercompany Loans as permitted by Section 8.1(f).
Appears in 1 contract
Samples: Revolving Credit and Line of Credit Agreement (Rotech Medical Corp)
Investments, Loans, Etc. The Borrower will notAt any time, and will not permit any of its Restricted Subsidiaries to, directly or indirectly purchase, hold hold, own or otherwise acquire (including pursuant to or invest in any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including obligation or security or any option, warrantinterest whatsoever in any other Person, or make or permit to exist any loans, advances or other right to acquire any extensions of the foregoing) of, make any loans or advances credit to, or make any investment (whether in cash or any other interest Property) in, any other Person, or purchase enter into any arrangement for the purpose of providing funds or otherwise acquire (in one transaction or a series of transactions) any assets of credit to any other Person that constitute a business unit or division of such another Person, or purchase become a partner or acquire all joint venturer in any partnership or substantially all joint venture, or make any other investment, whether by way of the assets of another capital contribution, time deposit or otherwise, in or with any Person, or create make any commitment or form otherwise agree to do any Restricted Subsidiary of the foregoing (all of the foregoing being collectively called “which are sometimes referred to herein as "Investments”) other than Investments constituting Permitted Acquisitions (including"), for the avoidance or permit any of doubtits Subsidiaries so to do, the Taurus Acquisition); provided, that:except: -----------
(a) the Borrower Investments in cash and its Restricted Subsidiaries may make and hold Permitted InvestmentsCash Equivalents;
(ib) Investments by the Borrower and Parent or any of its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments consisting of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employeesany officer, officers director or directors employee of the Borrower Parent or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons made in the ordinary course of business;
(hc) a Restricted Investments existing on the Effective Date as set forth on Schedule 8.4;
(d) normal business banking accounts in federally insured institutions in amounts not exceeding the limits of such insurance;
(e) Investments by the Parent or any Subsidiary of the Parent in Intercompany Indebtedness;
(f) Investments by the Parent or any of its Subsidiaries in the Capital Stock of any Subsidiary of the Parent;
(g) Receivables arising from the sale of goods and services in the ordinary course of business of the Parent and its Subsidiaries;
(h) at any time when a Person becomes a Subsidiary, all Investments of such Person at such time, pro- vided that the Borrower may be established or created shall have thirty (but not capitalized unless otherwise 30) days after such Person becomes a Subsidiary to replace all such Investments of such Subsidiary with Investments permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.128.5 (other than under this subsection (h));
(i) without duplication Investments in (A) any Security having (1) a short- term rating of A-2 or higher by S&P or P-2 or higher by Xxxxx'x, or a long- term rating of A or higher by S&P or A-2 or higher by Xxxxx'x, and (2) a maturity, or exercisable put-option, within 190 days from the date of acquisition thereof, and (B) any other bond fund or money-market fund substantially all of whose assets are comprised of such Securities of the type as described in the preceding clause (A) of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amountsentence;
(j) [reserved]Acquisitions permitted by Section 8.3(e);
(k) Investments by the Borrower trustee of any trust (established by the Parent or any Restricted of its Subsidiaries, the assets of which are generally unavailable to the Parent or such Subsidiary but which would be available to creditors of the Parent or such Subsidiary) in which deferred compensation for the Borrower benefit of certain officers or any Restricted Subsidiarydirectors of the Parent or such Subsidiary has been contributed; provided, however provided that the aggregate amount contribution of Investments pursuant assets to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties any such trust shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;be deemed to be an Investment; and
(l) other Investments arising as a result by the Parent or any of Hedge Agreements permitted pursuant to Section 7.10;
(m) its Subsidiaries, provided such Investments in joint ventures in an the aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5outstanding shall not exceed 15% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodNet Worth.
Appears in 1 contract
Samples: Credit Agreement (Kohls Corporation)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries (other than Monetization Subsidiaries) to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock of any Person, evidence of indebtedness Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any other investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “"Investments”) other than Investments constituting Permitted Acquisitions (including"), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in Subsidiaries), and refinancings, extensions of maturity and other modifications of Items 2 and 3 listed on Schedule 7.4, in each case that do not increase the outstanding principal amount thereof (immediately prior to giving effect to such refinancings, extensions of maturity or other modifications);
(b) Permitted Investments subject to Investment Control Agreements or Bank Account Control Agreements in favor of the Collateral Agent, on behalf of itself, and the Lenders, the lender under the Pari Passu Credit Facility, Citizens Bank of Pennsylvania, The Bank of Tokyo-Mitsubishi, Ltd., New York Branch and any other Loan Party:counterparties to Hedging Transactions that are entered into to replace or refinance either the Tokyo Interest Rate Hedge Agreement or the Citizens Interest Rate Hedge Agreement or otherwise subject to a perfected security interest in favor of the Collateral Agent, on behalf of itself, and the Lenders, the lender under the Pari Passu Credit Facility, Citizens Bank of Pennsylvania, The Bank of Tokyo-Mitsubishi, Ltd., New York Branch and any counterparties to Hedging Transactions that are entered into to replace or refinance either the Tokyo Interest Rate Hedge Agreement or the Citizens Interest Rate Hedge Agreement that has the highest priority that can be obtained by perfecting such security interest under the UCC;
(c) any Investments of a Person in existence at Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation aggregate amount of such Person becoming a Restricted Subsidiary Guarantees shall be subject to the limitations set forth in clauses (d) and (e) of the Borrowerthis Section 7.4;
(di) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received Investments made by the Borrower in connection with a sale any Foreign Subsidiary in the form of sales to such Foreign Subsidiary of Inventory on credit terms in the ordinary course of business which are evidenced by intercompany receivables or credit balances; (ii) Investments made by the Borrower in any Foreign Subsidiary (x) to finance capital expenditures or acquisitions, (y) to pay at maturity or refinance any Indebtedness of such Foreign Subsidiary or (z) in the form of Guarantees of any Indebtedness of such Foreign Subsidiary, in an aggregate amount for all such Investments not to exceed $15,000,000 per Fiscal Year and (iii) other disposition Investments in the form of assets to the extent Guarantees of Indebtedness permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors7.1(f);
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, other Investments made by the Borrower in any Subsidiary and its Restricted by any Subsidiary in the Borrower or in another Subsidiary; provided, that (A) the aggregate amount of Investments by Loan Parties in or to, and Guarantees by Loan Parties of Indebtedness of, Domestic Subsidiaries may make that are not Subsidiary Loan Parties (including all such Investments and Guarantees existing on the Closing Date) shall not exceed $1,000,000 in the aggregate at any time outstanding and (B) the aggregate amount of Investments (and, thereafter, may hold other than Guarantees) by Loan Parties in Foreign Subsidiaries shall not exceed $25,000,000 in the aggregate at any time outstanding and any such InvestmentsInvestment in the form of Guarantees are permitted under clause (d) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodthis Section 7.4;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans Loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business business, including, without limitation, for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate outstanding amount of all such loans and advances does not to exceed $15,000,000 10,000,000 at any time and time;
(iig) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted in connection with Monetization Transactions and other credits extended to customers and similar Persons Customer Financings entered into in the ordinary course of business;
(h) a Restricted Subsidiary of other Investments which in the Borrower may be established or created (but aggregate do not capitalized unless otherwise permitted under this Section 7.4) so long asexceed $10,000,000 in any Fiscal Year; provided, however, that to the extent applicableany such other Investments constitute an acquisition of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stock, assets or a combination thereof of any other Person, the Borrower and aggregate consideration for such Restricted Subsidiary comply acquisition together with the provisions of Section 5.12any related acquisitions shall not exceed $10,000,000;
(i) without duplication Investments permitted by clauses (ii) through (vi) of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount7.3;
(j) [reserved]extensions of trade credit in the ordinary course of business;
(k) Investments received as a result of the bankruptcy or reorganization of any Person or taken in settlement of or other resolution of claims or disputes, and, in each case, extensions, renewals, refinancings and replacements thereof;
(l) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements non-cash (excluding cash equivalents) consideration for Asset Sales permitted pursuant to under Section 7.107.6; provided, that the non-cash (excluding cash equivalents) consideration for each such Asset Sale shall not exceed 25% of the total consideration paid in connection with such Asset Sale;
(m) negotiable instruments held for collection or utility, workers' compensation, performance and other similar deposits in the ordinary course of business;
(n) Investments by the Borrower or any Subsidiary in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stock, assets or a combination thereof) of any other Person in an amount not to exceed $20,000,000 in the aggregate during the term of this Agreement; provided, that (i) such business or line of business is in substantially the same fields as the businesses of the Borrower and its Subsidiaries, taken as a whole, conducted on the Closing Date and in lines of business reasonably related thereto, (ii) such acquisition is made with the approval of the board of directors of the Person to be acquired, or of the percentage of ownership interests required by the charter documents of such Person to approve any such acquisition, (iii) immediately after giving pro forma effect to any such acquisition as though such acquisition had closed on the last Business Day of the Fiscal Month immediately preceding delivery of the most recently delivered Borrowing Base Certificate pursuant to Section 5.1(f), the Borrowing Availability would be at least $10,000,000, (iv) immediately after giving effect to the acquisition, no Default or Event of Default shall have occurred and be continuing and (v) immediately after giving pro forma effect to such acquisition as though the acquisition had closed on the first day of the most recently ended four consecutive Fiscal Quarter period for which financial statements have been delivered pursuant to Section 5.1, the Borrower would be in compliance with the financial covenants provided for in Article VI as of the most recent Fiscal Quarter in respect of which the Borrower is required to have delivered a Compliance Certificate pursuant to Section 5.1(c); and
(o) Investments in joint ventures or customers (other than Customer Financings) in order to facilitate the sale, lease or rental of goods or services to such customers in an aggregate amount not to exceed $10,000,000 in any single Investment, or $20,000,000 in the aggregate, outstanding at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodtime.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, Person or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “"Investments”) other than Investments constituting Permitted Acquisitions (including"), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower date hereof (including Investments in Subsidiaries) and its Restricted Subsidiaries may make and hold set forth on Schedule 7.5;
(b) Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not mergers, consolidations or acquisitions made in connection compliance with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.4;
(d) Guarantees constituting Indebtedness permitted by Section 7.3;
(e) loans, advances or equity investments made by the Borrower to or in any Subsidiary, or made by any Subsidiary to or in the Borrower or any other Subsidiary; provided, however, that after giving effect thereto, the consolidated revenue and its Restricted assets of the Loan Parties (excluding all intercompany Investments, intercompany receivables and other intercompany assets in Subsidiaries may hold that are not Loan Parties) equal or exceed the Aggregate Subsidiary Threshold;
(i) after the date hereof, except for Investments constituting nonin Parts Advantage, LLC, make Investments of more than Five Million Dollars ($5,000,000) in any Person, or enter into other equity alliances or equity contractual arrangements with any Person, or make an aggregate of more than Twenty-cash proceeds Five Million Dollars ($25,000,000) of such Investments during the period from the Closing Date through and including the Revolving Credit Termination Date or (ii) make equity investments of more than Ten Million Dollars ($10,000,000) in the aggregate in, or loans of more than Five Million Dollars ($5,000,000) in the aggregate to, Parts Advantage, LLC; provided, however, that the foregoing limitations shall not apply to transactions executed pursuant to the AFI Option Agreement;
(g) Investments received in connection with a sale bankruptcy or other disposition of assets to the extent permitted by Section 7.6 reorganization of, or in connection with the settlement of obligations owing to it by financially troubled debtorsdelinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (ih) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate outstanding amount of all such loans and advances does not to exceed $15,000,000 1,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12time;
(i) without duplication of any other clause of this Capital Expenditures permitted by Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount7.8;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary of its Subsidiaries in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodParty; and
(nk) Investments Hedging Transactions entered into in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodcompliance with Section 7.15.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will notnot at any time, and will not purchase or otherwise acquire, hold or make any Investment in any Person, including without limitation, an Acquisition, or permit any of its Restricted Subsidiaries toso to do, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances to, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted InvestmentsInvestments in Cash Equivalents;
(ib) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower accounts and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts notes receivable arising, trade debt granted and other credits extended to customers and similar Persons acquired in the ordinary course of business;
(hc) a Restricted notes from employees issued to the Borrower representing payment for capital Stock of the Borrower or representing payment of the exercise price of options to purchase capital Stock of the Borrower;
(d) any securities received in connection with an Asset Sale permitted under Section 8.7;
(e) Hedging Obligations permitted under Section 8.1(b)(vi);
(f) Investments of the Borrower or any of its Subsidiaries in any Subsidiary of the Borrower may for working capital and capital expenditure purposes of such Subsidiary or to enable such Subsidiary to make Investments permitted by subsections (g) and (h) below, provided that (i) such Investments in non-wholly -------- owned Subsidiaries shall be established made in the form of demand loans, the aggregate outstanding principal amount of which shall not exceed $10,000,000 at any one time, and (ii) such Investments in wholly-owned Subsidiaries shall be made either in the form of (x) demand loans or created (but y) additional paid in equity provided that the aggregate amount of all such additional paid in equity shall not capitalized unless otherwise permitted under this Section 7.4exceed $20,000,000 at any one time;
(g) so long asAcquisitions by the Borrower or any wholly owned Subsidiary of the Borrower, provided that (i) no Event of Default shall exist immediately before or after giving effect to such Acquisition, (ii) each such Acquisition was initially approved by the extent applicableboard of directors (or other Person performing similar functions) of each of the parties thereto, (iii) if, after giving effect to such Acquisition, an Additional Guarantor Event would occur, the Borrower shall cause one or more Domestic Subsidiaries to become a Guarantor such that the Additional Guarantor Event shall no longer exist, and (iv) the following conditions shall have been satisfied: (x) upon the consummation of each stock Acquisition, at least 50% of the Stock or other equity interest of the Person so acquired shall be owned by the Borrower or its Subsidiaries, and (y) in the case of Acquisitions of Stock or property of a Person that is not organized under the laws of, or whose Property is not located in, a jurisdiction within the United States, the total consideration to be paid in connection with all such Restricted Subsidiary comply with acquisitions made after the provisions of Section 5.12Effective Date shall not exceed $80,000,000 in the aggregate;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(kh) Investments by the Borrower or any Restricted Subsidiary a Guarantor in 50% or less of the voting Stock or other equity interest in another Person (the "Minority -------- Investment"), provided that (i) the Borrower or any Restricted Subsidiary; providedsuch Guarantor owns at least 20% ---------- (on a fully diluted basis) of the issued and outstanding capital Stock or other equity interest in such Person, however that (ii) the aggregate outstanding amount of Minority Investments made by the Borrower and the Guarantors, together with the aggregate amount of Investments all payments made after the Effective Date pursuant to this clause Section 8.4(b)(iv), shall not exceed $80,000,000 in the aggregate, (iii) the Borrower or such Guarantor shall have full control over all bank accounts of such Person if the Borrower or such Guarantor is the largest holder of voting Stock or other equity interests in such Person, (iv) the Borrower or such Guarantor shall control or act as the managing general partner of such Person if such Person is a partnership and if the Borrower or such Guarantor is the largest holder of equity interests in such Person, and (v) immediately before and after giving effect thereto, no Event of Default shall exist;
(i) Investments existing on the date hereof that are set forth on Schedule 8.5;
(j) Investments existing on the date hereof in Subsidiaries that are set forth on Schedule 4.1;
(k) in Restricted Subsidiaries any other Investments not permitted by the preceding clauses (a)- (j) above that are not Subsidiary Loan Parties shall do not exceed $20,000,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodtime;
(l) Investments arising as a result of Hedge Agreements Contingent obligations to the extent permitted pursuant to by Section 7.10;8.1(b); and
(m) Restricted Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodextent permitted under Section 8.4.
Appears in 1 contract
Samples: Term Loan Agreement (Total Renal Care Holdings Inc)
Investments, Loans, Etc. The Borrower Borrowers will not, and will not permit any of its Restricted their Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances to, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, that:
: (a) the Borrower Borrowers and its Restricted their Subsidiaries may make and hold Permitted Investments;
, and (b) the Borrowers and their Subsidiaries may make other Investments so long as (i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefromfrom the making of such Investment and (ii) the Administrative Borrower delivers to the Administrative Agent a certificate, together with supporting documents in form and substance satisfactory to the Administrative Agent, executed by a Responsible Officer certifying that as of such date of such proposed Investment (A) no 20% Triggering Event is projected to occur at any time during the twelve (12) month period immediately following such Investment, (B) the Borrowers are projected to have and maintain a Fixed Charge Coverage Ratio of at least 1.10:1.00 at all times during the twelve (12) month period immediately following such Investment and (C) the amount of all Investments made by the Borrowers and their Subsidiaries pursuant to this subclause (b) shall not exceed $10,000,000 in the aggregate for the period of four consecutive Fiscal Quarters most recently ended; provided, further, that, in addition to the foregoing conditions of this Section, if Consolidated EBITDA for the period of four consecutive Fiscal Quarters most recently ended (excluding from Consolidated EBITDA any amounts attributable to an Investments consummated during such period) equals or exceeds $75,000,000, the Borrower maximum amount of Investments permitted pursuant to this subclause (b) will be increased to $20,000,000 in the aggregate for the period of four consecutive Fiscal Quarters most recently ended; provided, further, that the aggregate amount of Investments made by the Borrowers pursuant to this subclause (b) during the term of this Agreement shall not exceed $50,000,000. Notwithstanding any other provision contained herein to the contrary, (x) the Borrowers and its Restricted their Subsidiaries may make Investments (and, thereafter, may hold such Investments) not otherwise permitted under this Section in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) 2,000,000 in any Fiscal Year so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom, from the making of such Investment and (ii) the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Administrative Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver delivers to the Administrative Agent a Compliance Certificate setting forth certificate, together with supporting documents in reasonable detail form and substance satisfactory to the calculations of the Total Net Leverage Ratio and Administrative Agent, executed by a Responsible Officer certifying that, as of the Borrower certifying the requirements such date of this clause (f) have been met;
(g) so long as such proposed Investment, no Default or 20% Triggering Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances projected to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 occur at any time during the twelve (12) month period immediately following such Investment and (iiy) the Borrowers shall not make any Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons after the Restatement Date in the ordinary course of business;
(h) a Restricted Subsidiary any of the Non-Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicableSubsidiaries; provided, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may Borrowers shall be permitted to make Investments after the Restatement Date in Longview Holdings in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period325,000.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Wholly Owned Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, Person or purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of a Person, or any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another any other Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person Intercompany Loans not to exceed the amount specified in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1(c) herein;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses not to exceed $250,000 in the aggregate outstanding amount;
(e) Hedging Transactions permitted by Section 7.10;
(f) the purchase or other acquisition of Capital Stock of one or more Non-Consolidated Entities so long as the aggregate amount of such Investments does not exceed either clause (i) or clause (ii) of the definition of Minority Investment Amount; provided however, that (x) at the time of such purchase or other acquisition and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (y) no such purchase or acquisition shall be made if the Borrower would not be in compliance on a Pro Forma Basis with the financial covenants set forth in Article VI recomputed as of the last day of the most recently ended Fiscal Quarter for which financial statements are available;
(g) Investments permitted by, and made in accordance with, Section 7.13;
(h) subject to compliance with Section 5.10, Investments made in newly formed Subsidiaries for the purpose of developing new surgery centers; and
(i) other Investments in an aggregate amount not to exceed $15,000,000 at 12,500,000 in any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted SubsidiaryFiscal Year; provided, however that the aggregate amount of Investments pursuant to made under this clause (kh) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time $30,000,000 in the greater aggregate during the term of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodthis Agreement.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will notnot at any time, and will not purchase or otherwise acquire, hold or make any Investment in any Person, including without limitation, an Acquisition, or permit any of its Restricted Subsidiaries toso to do, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances to, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted InvestmentsInvestments in Cash Equivalents;
(ib) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower accounts and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts notes receivable arising, trade debt granted and other credits extended to customers and similar Persons acquired in the ordinary course of business;
(hc) a Restricted notes from employees issued to the Borrower representing payment for capital Stock of the Borrower or representing payment of the exercise price of options to purchase capital Stock of the Borrower;
(d) any securities received in connection with an Asset Sale permitted under Section 8.7;
(e) Hedging Obligations permitted under Section 8.1(b)(vi);
(f) Investments of the Borrower or any of its Subsidiaries in any Subsidiary of the Borrower may for working capital and capital expenditure purposes of such Subsidiary or to enable such Subsidiary to make Investments permitted by subsections (g) and (h) below, provided that (i) such Investments in non-wholly -------- owned Subsidiaries shall be established made in the form of demand loans, the aggregate outstanding principal amount of which shall not exceed $10,000,000 at any one time, and (ii) such Investments in wholly-owned Subsidiaries shall be made either in the form of (x) demand loans or created (but y) additional paid in equity provided that the aggregate amount of all such additional paid in equity shall not capitalized unless otherwise permitted under this Section 7.4exceed $20,000,000 at any one time;
(g) so long asAcquisitions by the Borrower or any wholly owned Subsidiary of the Borrower, provided that (i) no Event of Default shall exist immediately before or after giving effect to such Acquisition, (ii) each such Acquisition was initially approved by the extent applicableboard of directors (or other Person performing similar functions) of each of the parties thereto, (iii) if, after giving effect to such Acquisition, an Additional Guarantor Event would occur, the Borrower shall cause one or more Domestic Subsidiaries to become a Guarantor such that the Additional Guarantor Event shall no longer exist, and (iv) the following conditions shall have been satisfied: (x) upon the consummation of each stock Acquisition, at least 50% of the Stock or other equity interest of the Person so acquired shall be owned by the Borrower or its Subsidiaries, and (y) in the case of Acquisitions of Stock or property of a Person that is not organized under the laws of, or whose Property is not located in, a jurisdiction within the United States, the total consideration to be paid in connection with all such Restricted Subsidiary comply with acquisitions made after the provisions of Section 5.12Effective Date shall not exceed $80,000,000 in the aggregate;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(kh) Investments by the Borrower or any Restricted Subsidiary a Guarantor in 50% or less of the voting Stock or other equity interest in another Person (the "Minority -------- Investment"), provided that (i) the Borrower or any Restricted Subsidiary; providedsuch Guarantor owns at least 20% ---------- (on a fully diluted basis) of the issued and outstanding capital Stock or other equity interest in such Person, however that (ii) the aggregate outstanding amount of Minority Investments made by the Borrower and the Guarantors on and after the Effective Date, together with the aggregate amount of Investments all payments made after the Effective Date pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties Section 8.4(b)(iv), shall not exceed at any time $80,000,000 in the greater aggregate, (iii) the Borrower or such Guarantor shall have full control over all bank accounts of such Person if the Borrower or such Guarantor is the largest holder of voting Stock or other equity interests in such Person, (xiv) $25,000,000 the Borrower or such Guarantor shall control or act as the managing general partner of such Person if such Person is a partnership and if the Borrower or such Guarantor is the largest holder of equity interests in such Person, and (yv) 7.5% immediately before and after giving effect thereto, no Event of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodDefault shall exist;
(li) existing Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10set forth on Schedule 8.5;
(mj) any other Investments in joint ventures in an aggregate amount not to permitted by the preceding clauses (a)-(i) above that do not exceed $20,000,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodtime; and
(nk) Restricted Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodextent permitted under Section 8.4.
Appears in 1 contract
Samples: Term Loan Agreement (Total Renal Care Holdings Inc)
Investments, Loans, Etc. The Borrower will notMake any Investment, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances to, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Cash Equivalents;
(c) Guarantees by Borrower or any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) Investments made by the Borrower in or to any Loan Party and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received by any Loan Party to the Borrower or in connection with a sale or other disposition of assets to another Loan Party, including intercompany loans to the extent permitted by under Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors7.1(d);
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses expenses; provided, that the aggregate amount of all such loans and advances does not exceed $250,000 in the aggregate at any time outstanding;
(f) Hedging Transactions permitted by Section 7.10;
(g) Permitted Acquisitions;
(h) Investments (i) in any Capital Stock or other security received in satisfaction or partial satisfaction thereof from financially troubled account debtors, and (ii) deposits, prepayments and other credits to suppliers and for leases, utilities and workers compensation, in each case made in the ordinary course of business consistent with the past practices of the Borrower and its Subsidiaries and permitted pursuant to the definition of Permitted Encumbrances;
(i) so long as no Default or Event of Default is continuing at the time such Investments are made, Investments in Foreign Subsidiaries in an aggregate amount not to exceed $15,000,000 at 1,000,000 in any time and Fiscal Year;
(iij) Investments consisting the extension of deposits, expense prepayments, commercial trade credit in the form of accounts receivable arisingin connection with the sale of inventory or the provision of services, trade debt granted and other credits extended to customers and similar Persons each in the ordinary course of business;
(h) a Restricted Subsidiary its business and consistent with past practices of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved]Subsidiaries;
(k) Investments comprised of Capital Stock or other obligations issued to the Loan Parties by any Person (or the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount representative of Investments pursuant to this clause (ksuch Person) in Restricted Subsidiaries that are compromise or settlement of Indebtedness of such Person owing to such Loan Party (whether or not Subsidiary in connection with the insolvency, bankruptcy, receivership or reorganization of such a Person or a composition or readjustment of the debts of such Person) or upon the foreclosure, perfection or enforcement of any Lien in favor of a Loan Parties shall not exceed at Party securing any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures such obligations in an aggregate amount not to exceed at $1,000,000 in any time Fiscal Year;
(l) Investments by the greater Loan Parties and their Subsidiaries in the form of (x) $25,000,000 and (y) 7.5% Capital Stock received as part or all of Consolidated EBITDA calculated on a Pro Forma Basis the consideration for the then most recently ended Test Period; andsale of assets pursuant to a Disposition by any such Loan Party of a Subsidiary to the extent permitted under Section 7.6;
(m) Investments constituting loans to licensees that are not Subsidiaries for the purchase of equipment in an amount not to exceed $750,000 per Fiscal Year and $3,500,000 in the aggregate during the term of this Agreement;
(n) other Investments so long as no Default or Event of Default is continuing at the time any such Investments is made, which in Unrestricted Subsidiaries in an the aggregate amount do not to exceed $2,000,000 outstanding at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodtime.
Appears in 1 contract
Samples: Credit Agreement (Primo Water Corp)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Restatement Effective Date and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Restricted Subsidiaries);
(b) cash and Cash Equivalents;
(c) Guarantees by Borrower and its Restricted Subsidiaries constituting Indebtedness permitted by Section 7.1; and to the extent constituting Investment, the intercompany Indebtedness permitted by Section 7.1;
(d) Investments made by the Borrower in or to any Restricted Subsidiary and by any Restricted Subsidiary in or to the Borrower or in or to another Restricted Subsidiary, including, without limitation, Investments of (whether by acquisition or otherwise) resulting in a Person in existence at becoming a Restricted Subsidiary; and any Investment by the time such Person becomes Borrower or a Restricted Subsidiary constituting an acquisition of assets constituting a business unit, line of business or division of, or the Borrower may be held by Capital Stock of, another Person (in the case of any acquisition of such Restricted Subsidiary; provided that such Investments were not made Capital Stock, resulting in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSubsidiary);
(di) Investments by the Borrower or any Restricted Subsidiary in or to, and its Guarantees by the Borrower or any Restricted Subsidiaries may hold Subsidiary of Indebtedness of, any Subsidiary that is not (or will not become simultaneously with such Investment) a Restricted Subsidiary (excluding all such Investments constituting non-cash proceeds received and Guarantees existing on the Restatement Effective Date) and (ii) Investments in connection with a sale or to entities that are not Subsidiaries, including independent sales organizations and other disposition of assets to strategic partners (excluding all such Investments existing on the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) Restatement Effective Date), so long as (x) no Default or Event of Default has occurred and is continuing or would result therefromtherefrom and (y) if the Consolidated Senior Secured Leverage Ratio is less than 5:00:1.00, as demonstrated by the Borrower and the Restricted Subsidiaries and calculated on a Pro Forma Basis after giving effect thereto, the aggregate amount of such Investments at any time outstanding does not exceed the sum of (A) $25,000,000 plus (B) 100% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries may make Investments for the twelve month period ending as of the most recently completed Fiscal Quarter for with financial statements and the related Compliance Certificate were delivered in accordance with Section 5.1, as applicable (andthe “Investment Basket”); provided, thereafterthat, may hold such Investments) in an as of any date of determination, if the aggregate amount not of Investments made pursuant to exceed this clause (e) exceeds the greater Investment Basket solely as a result of (x) $120,000,000 and (y) 33.0% of a decline in Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodas of such date of determination, such excess shall not in and of itself result in an Event of Default;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met[reserved];
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances made to employees, officers or directors of the Borrower or any Restricted Subsidiary in an aggregate amount of its Restricted Subsidiaries all such loans and advances does not exceed the greater of (x) $5,000,000 and (y) 5.0% LTM Consolidated EBITDA at any time outstanding;
(h) Hedging Transactions permitted by Section 7.10;
(i) 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 for travelbusiness, entertainment, relocation and related expenses Investments received in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits extended to customers and similar Persons suppliers in the ordinary course of business;
(hj) a Restricted Subsidiary of the Borrower may be established or created Investments (but not capitalized unless otherwise permitted under this Section 7.4including debt obligations and Capital Stock) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply received in connection with the provisions bankruptcy or reorganization of Section 5.12suppliers and customers or in settlement of delinquent obligations of, or other disputes with, customers and suppliers arising in the ordinary course of business or upon the foreclosure with respect to any secured Investment;
(ik) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amountordinary course of business consisting of endorsements for collection or deposit under Article 3 of the Uniform Commercial Code;
(jl) [reserved];
(km) without duplication of any other clauses in this Section, other Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall do not exceed at any time the greater of (x) $25,000,000 and (y) 7.520.0% of LTM Consolidated EBITDA in the aggregate at any time outstanding, determined as of the date of such Investment;
(n) so long as (x) no Event of Default has occurred and is continuing or would result therefrom and (y) the Borrower and the Restricted Subsidiaries demonstrate that the Consolidated Leverage Ratio does not exceed 6.00:1.00, in each case, calculated on a Pro Forma Basis for after giving effect thereto, Investments made with the then most recently ended Test PeriodAvailable Additional Basket;
(lo) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;made with the Available Equity Basket; and
(mp) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of so long as (x) $25,000,000 no Event of Default has occurred and is continuing or would result therefrom at the time such Investment is made, and (y) 7.5% of the Borrower and the Restricted Subsidiaries demonstrate that the Consolidated EBITDA Leverage Ratio is less than 5.00:1.00, in each case, calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at after giving effect thereto, any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodother Investments.
Appears in 1 contract
Investments, Loans, Etc. The No Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness indebtedness, Capital Stock or other equity interests or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Personunit, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower Cash and its Restricted Subsidiaries may make and hold Permitted InvestmentsCash Equivalents;
(ib) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale Travel advances or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) advances in an aggregate amount not to exceed in aggregate amount for all Borrowers at any one time outstanding the greater of (x) $120,000,000 and (y) 33.0500,000 or 0.40% of Consolidated EBITDA calculated on Total Assets, and which are made to any employee of a Pro Forma Basis for Borrower in the then most recently ended Test Periodordinary course of such Borrower’s business and in furtherance of such employee’s performance under a contract with a Customer;
(fc) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Hedging Agreements entered into in the ordinary course of business for travel, entertainment, relocation and related expenses to hedge or mitigate risks to which a Borrower is exposed in an aggregate amount not to exceed $15,000,000 at any time and the conduct of its business or the management of its liabilities;
(iid) Permitted Acquisitions;
(e) Investments consisting in deposit accounts in which the Administrative Agent has been granted a security interest under the Loan Documents;
(f) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of depositssuppliers and customers and in settlement of delinquent obligations of, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to disputes with, customers and similar Persons suppliers arising in the ordinary course of business;
(g) Receivables owing to a Borrower created or acquired in the ordinary course of business and payable on customary trade terms of such Borrower;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) Other Investments so long asas the aggregate amount thereof (determined as the amount originally advanced, loaned or otherwise invested (without giving effect to any write-downs or write-offs thereof), less any realized returns on the extent applicable, respective investment not to exceed the Borrower and such Restricted Subsidiary comply with original amount invested) at no time outstanding exceeds $500,000 in the provisions of Section 5.12aggregate for all Borrowers;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;Permitted Teaming Arrangements; and
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted new Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time become Borrowers in accordance with the greater terms of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodthis Agreement.
Appears in 1 contract
Investments, Loans, Etc. The Borrower DAP will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold make or acquire (including pursuant permit to remain outstanding any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness loan or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances advance to, or make guarantee, endorse, or otherwise be or become contingently liable, directly or indirectly in connection with obligations, stock or dividends of any investment Person other than DAP or a Wholly Owned Subsidiary of DAP, or hold any other interest in, Investments in any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) hold any assets of any Subsidiaries, other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatthan:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds investments received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons debts created in the ordinary course of business;
(b) the endorsement of negotiable instruments in the ordinary course of business;
(c) investments in stock or assets, or any combination thereof, of Subsidiaries existing on the date hereof or of any new Subsidiaries provided that (i) such investments in Subsidiaries that are not Wholly-Owned Subsidiaries and (ii) such investments which are used or to be used for the acquisition of all or any portion of the equity in or assets of any other Person do not exceed $50,000,000.00 in the aggregate during any twelve (12) month period;
(d) investments in minority interests in any other Person provided such minority interests do not exceed $500,000.00 in the aggregate;
(e) direct obligations of the United States or any agency thereof, or obligations guaranteed by the United States or any agency thereof, in each case supported by the full faith and credit of the United States and maturing within one year from the date of creation thereof;
(f) commercial paper, bankers acceptances or corporate obligations maturing within one year from the date of creation thereof having a rating at the time as of which any determination is made of P-1 (or higher) according to Moody's or as A-1 (or higher) according to Standard & Poor's corporation or the equivalent thereof if by another nationally recognized credit rating agency;
(g) time deposits or repurchase agreements maturing within one year from the date of creation thereof, including certificates of deposit or repurchase agreements issued by any Funding Party and any office located in the United States of any bank or trust company which is organized under the laws of the United States or any state thereof and has total assets aggregating at least $500,000,000.00, including without limitation, any such deposits in Eurodollars issued by a foreign branch of any such bank or trust company;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12Investments made by Plans;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;Intercompany Loans; and
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant advances to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount employees not to exceed $1,000,000.00 in the aggregate at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodone time.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called "Investments"), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Personunit, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Domestic Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of Guarantees by the Borrower may be held and its Subsidiaries constituting Indebtedness permitted by such Restricted SubsidiarySection 7.1; provided that such Investments were the aggregate principal amount of Indebtedness of Subsidiaries that are not made Subsidiary Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in connection with or anticipation subsection (e) of such Person becoming a Restricted Subsidiary of the Borrowerthis Section;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses expenses;
(e) Investments made by the Borrower in or to any Domestic Subsidiary and by any Domestic Subsidiary in or to the Borrower or another Domestic Subsidiary provided that the aggregate amount of Investments by the Loan Parties in or to, and Guarantees by the Loan Parties of Indebtedness of, any Domestic Subsidiary that is not a Subsidiary Loan Party (including all such Investments and Guarantees existing on the Fifth Restatement Date) shall not exceed $500,000 at any time outstanding;
(f) Investments by Foreign Subsidiaries that are held or made outside the United States of America of the same or similar quality as Permitted Investments and Investments by a Foreign Subsidiary in another Foreign Subsidiary;
(g) Investments by the Borrower or any Domestic Subsidiary in any Foreign Subsidiaries in an aggregate principal amount not to exceed $75,000,000 at any time outstanding;
(h) Hedging Transactions permitted under Section 7.10;
(i) Investments permitted under subsections (iii), (vi), (vii) and (viii) of Section 7.5;
(j) Investments consisting of the Acquisition of assets of or equity interests in third parties provided, that (i) such Acquisition is in the same line of business or supports the primary business activities of Borrower and its Subsidiaries or is a business reasonably related to the business that Borrower and its Subsidiaries were engaged in on the Fifth Restatement Date; (ii) after giving effect to the Acquisition, the Borrower would have been in compliance with Section 6.1 (calculated on a Pro Forma Basis taking into account such Acquisition) measured as of the last day of the most recently ended Fiscal Quarter or Fiscal Year for which the Borrower has delivered financial statements to the Administrative Agent hereunder; (iii) no Default or Event of Default exists or would exist taking into account such Acquisition; (iv) the aggregate consideration paid in connection with all such Acquisitions permitted under this Section 7.4(j) shall not exceed $150,000,000 for all such Acquisitions consummated after the Fifth Amendment Effective Date; and (v) if the consideration for one or more Acquisitions exceeds in the aggregate $50,000,000 in any Fiscal Quarter, the Administrative Agent has received, prior to consummation of the Acquisition that causes such amount to be exceeded, a Pro Forma Compliance Certificate demonstrating compliance with Section 6.1; and
(k) Other Investments in an aggregate amount not to exceed $15,000,000 50,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Healthways, Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries and Investments constituting the Acquisition);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Investments of a Person Loan Party shall be subject to the limitation set forth in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerclause (d) hereof;
(d) Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with or to another Subsidiary; provided, that the settlement aggregate amount of obligations owing Investments by Loan Parties in or to, and Guarantees by Loan Parties of Indebtedness of, any Subsidiary that is not a Subsidiary Loan Party (including all such Investments and Guarantees existing on the Closing Date) shall not exceed $30,000,000 at any time outstanding; provided, further, that neither the Borrower nor any of its Subsidiaries shall be permitted to it Guarantee any Indebtedness owed by financially troubled debtorsany Securitization Subsidiary;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may make Investments (andby any Subsidiary to any Person that is not a Subsidiary; provided, thereafter, may hold such Investments) in an that the aggregate amount of all such Investments in or to, and Guarantees of Indebtedness of, any such Persons (including all such Investments and Guarantees existing on the Closing Date) shall not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period25,000,000 at any time outstanding;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiaryexpenses; provided, however however, that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall all such loans and advances does not exceed $1,000,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodtime;
(lg) Investments arising as a result of Hedge Agreements Hedging Obligations permitted pursuant to by Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(nh) other Investments which in Unrestricted the aggregate do not exceed $5,000,000 in any Fiscal Year. Notwithstanding the foregoing, prior to the Subordination Event, the Borrower will not, and will not permit any of its Subsidiaries to, make Investments as to which the consideration, in an aggregate amount not to the aggregate, for all such Investments consummated after the Closing Date, shall exceed at any time the greater of (x) $25,000,000 30,000,000 in cash plus $100,000,000 in equity and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodother consideration.
Appears in 1 contract
Investments, Loans, Etc. The KPP and the Borrower will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, Person or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “"Investments”) other than Investments constituting Permitted Acquisitions (including"), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower and its Restricted Subsidiaries may make and hold date hereof (including Investments in Subsidiaries);
(b) Permitted Investments;
(ic) Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the Borrower and its Restricted aggregate principal amount of Indebtedness of Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) that are not Guarantors that are Guaranteed by any Loan Party may make Investments shall be subject to the limitation set forth in any other Loan Party:
subsection (cd) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerhereof;
(d) Investments made by KPP in or to any Subsidiary and by any Subsidiary to the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with or to another Subsidiary; provided, that the settlement aggregate amount of obligations owing to it Investments by financially troubled debtorsLoan Parties in or to, and Guarantees by Loan Parties of Indebtedness of any Subsidiary that is not a Guarantor (including all such Investments and Guarantees existing on the Closing Date) shall not exceed $100,000,000 at any time outstanding;
(e) so long as no Default other Investments made by KPP or Event any Subsidiary of Default has occurred KPP (in each case, whether directly or indirectly, through one or more Subsidiaries of KPP or one or more Excluded Affiliates), provided, that for any such Investment of at least $50,000,000 individually, and is continuing or would result therefromfor each such Investment of at least $10,000,000 individually if the aggregate of all such Investments during any fiscal year of KPP shall have exceeded $75,000,000, KPP shall first have provided to the Borrower Administrative Agent financial statements of KPP and its Restricted consolidated Subsidiaries may make Investments (anddemonstrating, thereafterto the reasonable satisfaction of the Administrative Agent, may hold that after giving pro forma effect to such Investments) Investment, KPP shall continue to be in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodcompliance with Article VI hereof;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower KPP or any Subsidiary of its Restricted Subsidiaries KPP in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiaryexpenses; provided, however however, that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall all such loans and advances does not exceed $1,000,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodtime; and
(ng) Investments in Unrestricted Subsidiaries in an aggregate amount not pursuant to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodHedging Agreements permitted by Section 7.10.
Appears in 1 contract
Samples: Revolving Credit Agreement (Kaneb Pipe Line Partners L P)
Investments, Loans, Etc. The Borrower will Loan Parties shall not, and will shall not permit any of its Restricted their respective direct or indirect Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Wholly Owned Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, guaranty any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower date hereof and its Restricted Subsidiaries may make set forth on Schedule 7.04 (including Investments in Subsidiaries), and hold any modification, replacement, renewal, reinvestment or extension thereof (provided that the amount of the original Investment is not increased except as otherwise permitted by this Section 7.04);
(b) Permitted Investments;
(ic) Guarantees constituting Indebtedness permitted by Section 7.01 hereof; provided, that the Borrower aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is guaranteed by any Loan Party, when taken together with the Indebtedness permitted by Section 7.01(d) and its Restricted Subsidiaries may hold the aggregate amount of Investments by Loan Parties in or to any direct or indirect Subsidiary that is not a Subsidiary Loan Party (including all such Investments existing on the Fourth Amendment Closing Date and Date) permitted by the succeeding subparagraph (d), shall be subject to the limitation set forth on Schedule 7.4 and in the following subparagraph (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerd);
(d) Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent Borrower or in or to another Subsidiary; provided, that the aggregate amount of capital contributions by Loan Parties in or to any direct or indirect Subsidiary that is not a Subsidiary Loan Party, and Guarantees by Loan Parties of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party (including all such Guarantees existing on the Closing Date) permitted by the foregoing subparagraph (c) and Section 7.01(e), when taken together with the Indebtedness permitted by Section 7.6 or in connection with the settlement 7.01(d) of obligations owing a Loan Party to it by financially troubled debtors;any Subsidiary that is not a Loan Party (without duplication), shall not exceed $10,000,000.00 at any time outstanding
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodPermitted Acquisitions;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed Hedging Transactions permitted by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been metSection 7.10 hereof;
(g) so long as no Default Investments received in connection with the bankruptcy or Event reorganization of, or settlement of Default has occurred delinquent accounts and is continuing or would result therefromdisputes with, the Borrower customers, licensors, licensees and its Restricted Subsidiaries may make (i) loans or advances to employeessuppliers, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons each case in the ordinary course of business;
(h) a Restricted Subsidiary loans and advances in the ordinary course of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) business to employees, officers and directors so long as, as the aggregate principal amount thereof at any time outstanding (determined without regard to the extent applicable, the Borrower any write-downs or write-offs of such loans and such Restricted Subsidiary comply with the provisions of Section 5.12advances) shall not exceed $500,000.00;
(i) without duplication extensions of any other clause trade credit in the ordinary course of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amountbusiness;
(j) [reserved]Investments made as a result of the receipt of non-cash consideration from a sale, transfer or other disposition of any asset in compliance with this Agreement;
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower ordinary course of business consisting of endorsements for collection or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Perioddeposit.
Appears in 1 contract
Investments, Loans, Etc. The Borrower Sponsor will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower date hereof and its Restricted Subsidiaries may make and hold set forth on Schedule 8.4 (including Investments in Subsidiaries);
(b) Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerPermitted Acquisitions;
(d) Investments made by the Borrower Sponsor in or to any other Credit Party and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or by any other disposition of assets Credit Party to the extent permitted by Section 7.6 Sponsor or in connection with the settlement of obligations owing or to it by financially troubled debtorsanother Credit Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers officers, directors or directors stockholders of the Borrower Sponsor or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Subsidiary in the ordinary course of business; provided, however, that the aggregate amount of all such loans and advances does not exceed $1,000,000 at any time;
(f) (i) loans to franchise operators and owners of franchises acquired or funded pursuant to the Loan Facility Agreement, the Rosey Rentals Loan Facility Agreement, the RIMCO Loan Facility Agreement and the RBC Loan Facility Agreement and (ii) other adequately secured and properly monitored loans to franchise operators and owners of franchises in an aggregate principal amount outstanding, together with loans outstanding under clause (i) of this Section 8.4(f), not to exceed the aggregate facility amounts available for borrowing by franchise operators that the Sponsor is permitted to guarantee pursuant to Section 8.1;
(g) acquire and own stock, obligations or securities received in settlement of debts (created in the ordinary course of business) owing to any Guarantor or any of their Subsidiaries;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, loans to Foreign Subsidiaries to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of permitted under Section 5.128.1;
(i) without duplication of any other clause of this loans to franchise operators to extent permitted under Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;8.1; and
(j) [reserved];
(k) other Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed $25,000,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period.time;
Appears in 1 contract
Investments, Loans, Etc. The Parent and the Borrower will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) any Investments Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary Indebtedness of the Borrower’s Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (d) hereof;
(d) Investments made by the Parent or the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with or to another Subsidiary of the settlement Borrower; provided, that the aggregate amount of obligations owing to it Investments by financially troubled debtorsLoan Parties in or to, and Guarantees by Loan Parties of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party (including all such Investments and Guarantees existing on the Closing Date) shall not exceed $1,000,000 at any time outstanding;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any Subsidiary of its Restricted Subsidiaries the Borrower in the ordinary course of business for travel, entertainment, relocation and related expenses expenses; provided, however, that the aggregate amount of all such loans and advances does not exceed $500,000 at any time;
(f) Hedging Transactions permitted by Section 7.10;
(g) Permitted Acquisitions;
(h) Permitted UIC Cash Acquisitions and Permitted UIC Cash Investments in an aggregate amount not to exceed $15,000,000 at any the amount of UIC Cash in effect from time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;time.
(i) without duplication of any other clause of this Section 7.4Permitted Other Investments, so long as the Available Amount Conditions are satisfied at aggregate amount invested in Permitted Other Investments, plus the time of such Investmentaggregate amount distributed as Permitted Other Dividends pursuant to Section 7.5(e), the Borrower and its Restricted Subsidiaries may make Investments in an amount does not to exceed the Available Amount$25,000,000;
(j) [reserved];Loans made by the Borrower to the Parent to fund on a substantially simultaneous basis Restricted Payments permitted under Section 7.5(d) and (e) and Permitted Other Investments permitted under clause (i) above; and
(k) Other Investments by the Borrower or any Restricted Subsidiary which in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall do not exceed at $1,000,000 in any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodFiscal Year.
Appears in 1 contract
Samples: Revolving Credit Agreement (United Industrial Corp /De/)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances to, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition)Acquisitions; provided, that:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period40,000,000 per Fiscal Year;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Senior Secured Net Leverage Ratio does not exceed 4.00 2.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Senior Secured Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 10,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by after the Borrower or any Restricted Subsidiary Closing Date in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;minus any amount that has been utilized under Section 7.5(b)(i); and
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period.
Appears in 1 contract
Samples: Credit Agreement (E.W. SCRIPPS Co)
Investments, Loans, Etc. The Borrower will not, and will not permit any without the prior written consent of its Restricted Subsidiaries tothe Requisite Banks, purchasedirectly or indirectly, hold purchase or otherwise acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness the stock or other securities (including or the properties or assets of any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances toPerson, or make any investment in or any other interest inloan, advance or capital contribution to any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, provided that:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;
(i) the Borrower may purchase or otherwise acquire and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and own Eligible Investments;
(ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made purchase or otherwise acquire goods and services in connection the ordinary course of business and in accordance with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowercustomary trade practices;
(diii) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets make Capital Expenditures subject to the extent permitted by Section 7.6 or limitation on the incurrence of Purchase Money Indebtedness set forth in connection with the settlement of obligations owing to it by financially troubled debtorsSections 6.2(c) and 6.4(a) hereof;
(eiv) so long as no Event of Default or Potential Event of Default has occurred and is continuing or would result therefrom, the Borrower and (A) may contribute capital and/or make loans to its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) Mexican Subsidiary in an aggregate amount not to exceed Ten Million Dollars ($10,000,000.00) during the greater term of (x) $120,000,000 the Loan Agreement, and (yB) 33.0% of may increase its existing investment in and/or make loans to its other Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodSubsidiaries;
(fv) the Borrower may extend, renew and/or reissue its guaranty of payment of each and every promissory note now or hereafter issued by Processing Technology, Inc. to National City to evidence the Two Million Dollars ($2,000,000) line of credit established by National City in favor of Processing Technology, Inc.;
(vi) the Borrower may extend, renew and/or reissue from time to time any guaranties of payment up to an aggregate amount of Six Million Two Hundred fifty Thousand Dollars ($6,250,000.00) of the unpaid principal of and/or unpaid interest on each and every promissory note now or hereafter issued by Mi-Tech Steel, Inc.;
(vii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Potential Event of Default has occurred and is continuing or would result therefrom, the Borrower may increase its existing investment in the Joint Ventures, subject to the limitation set forth in subpart (viii) below; and
(viii) the Borrower may incur guarantees and its Restricted Subsidiaries may make other Contingent Obligations and/or expend funds, including, without limitation, by making loans, up to a maximum aggregate amount of Five Million Dollars (i$5,000,000.00), in connection with the acquisition of the assets, debt or equity interests of any Person, provided that any such acquisition, on a pro forma basis after giving effect to any such acquisition, will not cause the Borrower to be in violation of any of the covenants set forth in Sections 6.8 through 6.11 hereof, as evidenced by a duly completed Compliance Certificate delivered to the Agent, and provided that no Event of Default or Potential Event of Default shall exist. For purposes of the Five Million Dollar ($5,000,000.00) loans or advances limitation set forth in this Section 6.5(viii), the amount of any Contingent Obligation incurred by the Borrower shall be deemed to employees, officers or directors equal the maximum dollar amount of liability of the Borrower under the particular Contingent Obliga- tion.
(ix) so long as no Event of Default or any Potential Event of its Restricted Subsidiaries in Default has occurred and is continuing or would result therefrom the ordinary course Borrower (A) may contribute capital and/or make loans to Mi- Tech Steel, Inc., or guarantee the obligations of business for travelMi-Tech Steel, entertainment, relocation and related expenses Inc. in an aggregate amount not to exceed Ten Million Dollars ($15,000,000 at any time 10,000,000.00) during the term of the Loan Agreement, and (iiB) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and may increase its existing investment in and/or make loans to its other credits extended to customers and similar Persons in the ordinary course of business;Consolidated Subsidiaries.
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4x) so long as, to the extent applicable, as no Event of Default or Potential Event of Default has occurred and is continuing or would result therefrom the Borrower (A) may acquire all of the issued and outstanding capital stock of Atlantic, provided such Restricted Subsidiary comply with acquisition is concluded on or before May 15, 1997, and provided that the provisions total purchase price paid by or for the account of Section 5.12;
Borrower in cash or other property does not exceed the amount of $7,250,000, and (iB) without duplication from and after the acquisition by Borrower of any other clause all of this Section 7.4the issued and outstanding capital stock of Atlantic, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries (a) may contribute capital and/or make Investments loans to Atlantic in an amount not to exceed the Available Amount;
Twenty-Two Million Dollars (j$22,000,000) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed outstanding at any one time during the greater term of (x) $25,000,000 the Loan Agreement, and (yb) 7.5% of may increase its existing investment in and/or make loans to its other Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodSubsidiaries.
Appears in 1 contract
Investments, Loans, Etc. The Borrower Parent will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances toInvestment, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Restatement Date and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person in existence at Guarantees by the time such Person becomes a Restricted Subsidiary of Parent and its Subsidiaries constituting Indebtedness permitted by Section 7.1 and Liens permitted by Section 7.2 or other Guarantees by the Borrower may be held by such Restricted Subsidiaryand its Subsidiaries of other obligations not constituting Indebtedness incurred in the ordinary course of business; provided that such Investments were the aggregate principal amount of Indebtedness of Subsidiaries that are not made Subsidiary Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in connection with or anticipation subsection (d) of such Person becoming a Restricted Subsidiary of the Borrowerthis Section;
(d) subject to Section 6.4, Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection or to another Subsidiary; provided that the aggregate amount of Investments by the Loan Parties in or to, and Guarantees by the Loan Parties of Indebtedness of, any Subsidiary that is not a Loan Party shall not exceed $5,000,000 at any time outstanding; provided further, that no such Investments made pursuant to this clause (d) in the form of intercompany loans shall be evidenced by a promissory note unless (x) such promissory note is pledged to the Administrative Agent in accordance with the settlement terms of obligations owing the Security Agreement and (y) all such Indebtedness of any Loan Party owed to it by financially troubled debtorsany Subsidiary that is not a Loan Party shall be unsecured and subordinated to the Obligations pursuant terms reasonably satisfactory to the Administrative Agent;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefromsubject to Section 6.4, Investments made by the Borrower and its Restricted or any Subsidiary in Foreign Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount invested from the date hereof not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period2,000,000 at any time outstanding;
(f) so long payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as no Default or Event expenses of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower Parent and its Restricted Subsidiaries may make additional Investments (for accounting purposes and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), that are made in the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations ordinary course of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been metbusiness;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an business; provided that the aggregate amount of all such loans and advances does not to exceed $15,000,000 400,000 at any time outstanding;
(h) promissory notes and other non-cash consideration received in connection with the disposition of any asset permitted under Section 7.6;
(iii) Hedging Transactions permitted by Section 7.9;
(j) Investments consisting permitted under Section 7.3, including Permitted Acquisitions and Investments of deposits, expense prepayments, accounts receivable arising, any Person existing at the time such Person becomes a Loan Party or consolidates or merges with a Loan Party (including in connection with a Permitted Acquisition) in connection with a transaction permitted hereby so long as such Investments were not made in contemplation of such Person becoming a Loan Party or of such consolidation of merger;
(k) extensions of trade debt granted and other credits extended credit in the ordinary course of business to customers of the Parent and similar Persons its Subsidiaries and advances made in connection with the purchase of goods or services in the ordinary course of business;
(hl) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply Investments received in connection with the provisions bankruptcy or reorganization of, or settlement of Section 5.12delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(im) without duplication of any Receivables, security deposits or other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not trade payables owing to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary of its Subsidiaries if created or acquired in the Borrower ordinary course of business and payable or any Restricted Subsidiary; provideddischargeable in accordance with customary trade terms;
(n) deposit accounts;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit or lease, however that utility and other similar deposits and deposits with suppliers in the ordinary course of business;
(p) subject to Section 6.4, other Investments which in the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall do not exceed at any time outstanding the greater of (x) $25,000,000 45,000,000 and (y) 7.520.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(lq) so long as no Event of Default shall have occurred and be continuing or would otherwise result therefrom, other Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time such that the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated Leverage Ratio on a Pro Forma Basis for would be less than or equal to 2.25:1.00 as of the then last day of the most recently ended Test Period; and
(nr) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodOcean Acquisition.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called "Investments"), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person("Acquisitions"), or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower date hereof and its Restricted Subsidiaries may make and hold set forth on Schedule 7.4;
(b) Permitted Investments;
(ic) Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the Borrower and its Restricted aggregate principal amount of Indebtedness of Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) that are not Subsidiary Loan Parties that is Guaranteed by any Loan Party may make Investments shall be subject to the limitation set forth in any other Loan Party:
clause (cd) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerhereof;
(d) Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsanother Subsidiary;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and expenses;
(iif) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Hedging Agreements permitted by Section 7.10;
(g) Real estate investments or joint ventures that are typical in the Borrower's ordinary course of business;
(h) a Restricted Subsidiary Other Investments which in the aggregate do not exceed $5,000,000.00 in any fiscal year of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;Borrower; and
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount Acquisitions not to exceed in the Available Amount;
(j) [reserved];
(k) Investments by aggregate in any fiscal year of the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.515% of Consolidated EBITDA calculated on a Pro Forma Basis for Net Worth (measured at the then most recently ended Test Period;
(l) Investments arising as a result end of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments the immediately preceding fiscal year); provided that Acquisitions in joint ventures the aggregate in an aggregate amount not to exceed at any time fiscal year of the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period.Borrower up to
Appears in 1 contract
Samples: Revolving Credit Agreement (Patriot Transportation Holding Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit the Parent or any of its Restricted the Subsidiaries of the Parent to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of a Person, or any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another any other Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “"Investments”) "), except: Investments (other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, that:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 (including Investments in Subsidiaries); Permitted Investments; Investments constituting Permitted Acquisitions, the Acquisition and (ii) the Specified Acquisition; Guarantees by the Parent and its Subsidiaries to the extent constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Loan Party may make shall be subject to the limitations set forth in clause (a) of this Section 7.4; Investments made by the Parent in or to any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Parent and by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted any Subsidiary of the Borrower;
(d) Parent to the Borrower Parent or in or to another Subsidiary of the Parent; provided, that, after the Closing Date, the aggregate amount of Investments by Loan Parties in or to, and its Restricted Subsidiaries may hold Guarantees by Loan Parties of Indebtedness of any Subsidiary that is not a wholly-owned Subsidiary shall not exceed $1,000,000 at any time outstanding; Investments constituting non-cash proceeds in trade receivables or received in connection with a sale the bankruptcy or other disposition reorganization of assets to the extent permitted by Section 7.6 or suppliers and customers and in connection with the settlement of delinquent obligations owing to it of, and other disputes with, customers and suppliers arising in the ordinary course of business; Investments consisting of deposit accounts maintained by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower Parent and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travelin connection with their cash management system; Investments consisting of non-cash consideration from a sale, entertainmentassignment, relocation transfer, lease, conveyance or other disposition of Property permitted by Section 7.6; Investments constituting contributions to and related expenses payment of benefits by the Parent or its Subsidiaries under any Plan in existence as of the Closing Date as required by the benefit commitments in such Plan as of the Closing Date; Hedging Transactions permitted by Section 7.10; and Other Investments in addition to those permitted elsewhere in this Section 7.4 in an aggregate amount not to exceed $15,000,000 5,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-wholly owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary Subsidiary, except: Investments (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, that:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and 8.3 (ii) including Investments in Subsidiaries); Permitted Investments; Guarantees of Indebtedness in an amount not to exceed $10,000,000 in the aggregate at any one time outstanding; Investments made by any Loan Party may make Investments in or to any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses expenses; Hedging Agreements permitted by Section 8.8; Investments received in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting settlement of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Indebtedness created in the ordinary course of business;
; Acquisitions by any Loan Party meeting the following requirements (h) each such Acquisition constituting a Restricted Subsidiary “Permitted Acquisition”): as of the Borrower may date of the consummation of such Acquisition, no Default or Event of Default shall have occurred and be established continuing or created (but not capitalized unless otherwise permitted under this Section 7.4) so long aswould result from such Acquisition, and the representations and warranties contained herein shall be true both before and after giving effect to such Acquisition; such Acquisition is consummated on a non-hostile basis pursuant to a negotiated acquisition agreement approved by the board of directors or other applicable governing body of the seller or entity to be acquired, and no material challenge to such Acquisition shall be pending or threatened by any shareholder or director of the seller or entity to be acquired; the business to be acquired in such Acquisition is pertaining to Ruby Tuesday units pursuant to the extent applicableBorrower’s Traditional Franchisee program and/or Franchise Partner Program; as of the date of consummation of such Acquisition, all material approvals required in connection therewith shall have been obtained; the Borrower and such Restricted Subsidiary comply with shall have delivered to the provisions of Section 5.12;
Administrative Agent not less than five (i5) without duplication of any other clause of this Section 7.4, so long as days prior to the Available Amount Conditions are satisfied at the time consummation of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however Acquisition a pro forma compliance certificate demonstrating that the aggregate amount of Investments pursuant Adjusted Total Debt to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated EBITDAR Ratio on a Pro Forma Basis for (after giving effect to such Acquisition) is less than 3.25:1.00; and the then most recently ended Test Period;
(l) Borrower has at least $10,000,000 of availability under the Aggregate Revolving Commitments after giving effect to such Acquisition. Investments arising as a result in Equity Interests of Hedge Agreements the Borrower to the extent permitted pursuant to under Section 7.10;
(m) 8.4; Investments in joint ventures in an aggregate amount not to exceed $5,000,000 in the aggregate at any one time outstanding. Investments under Section 8.3 (other than Section 8.3(a), (b), (d), (e) or (g)) shall not be permitted if, before or after giving effect to the greater making of such Investment, a Default or an Event of Default has occurred and is continuing. Notwithstanding any of the foregoing provisions of this Section 8.3, no Grantor Guarantor shall make any Investment comprised of an (xa) $25,000,000 and Applicable Account Receivable or (yb) 7.5% intellectual property (other than, in the case of Consolidated EBITDA calculated on a Pro Forma Basis for this clause (b), any non-exclusive license of intellectual property in accordance with past practice that is useful or necessary in the then most recently ended Test Period; and
(noperation of the applicable Non-Grantor Guarantor’s business) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodNon-Grantor Guarantor.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guarantees constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) Investments made by the Borrower in or to any Subsidiary Loan Party and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsa Subsidiary Loan Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 1,000,000 outstanding at any time;
(f) repurchases of shares of Capital Stock and options to purchase shares of Capital Stock of the Borrower or any Excluded JV from minority owners of such Excluded JV, and provided, that for the purpose of this clause (f) at the time such repurchase is made and after giving effect thereto (i) no Default or Event of Default has occurred and is continuing nor would occur and (ii) the Borrower would be in compliance with the financial covenants contained in Article 6 (other than Section 6.3) on a pro forma basis;
(g) (i) Permitted Acquisitions and xxxxxxx money deposits in connection therewith and (ii) Investments made by any Person existing at the time such Person becomes a Subsidiary or consolidates, amalgamates or merges with the Borrower or any of its Subsidiaries in connection with a Permitted Acquisition or other Investment permitted hereunder, so long as such Investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation, amalgamation or merger;
(h) Hedging Transactions permitted by Section 7.10;
(i) Investments consisting of deposits, expense prepayments, extensions of credit in the nature of accounts receivable arisingor notes receivable arising from the grant of trade credit in the ordinary course of business, trade debt granted and other credits extended Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to customers the extent reasonably necessary in order to prevent or limit loss;
(j) Investments consisting of receivables and similar Persons notes received from students in the ordinary course of business;
(hk) a Restricted Subsidiary the Capella Acquisition and the Investments of Capella and its Subsidiaries existing on the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4Second Amendment Effective Date, so long as the Available Amount Conditions are satisfied at the time such Investments were not made in contemplation of such Investment, the Borrower Capella and its Restricted Subsidiaries may make Investments in an amount not to exceed becoming Subsidiaries of the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodBorrower;
(l) Investments arising as a result made in or to CEC RDN; provided, however, that the aggregate amount of Hedge Agreements permitted pursuant such Investments shall not exceed the costs required to Section 7.10;keep CEC RDN’s charter active until it is dissolved and the costs associated with dissolving CEC RDN; and
(m) Other Investments which in joint ventures the aggregate do not exceed $50,000,000 in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodFiscal Year.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Strategic Education, Inc.)
Investments, Loans, Etc. The Borrower will Loan Parties shall not, and will shall not permit any of its their respective Restricted Subsidiaries to, make or suffer to exist any Investments (as defined below) in any ACL Group member, other than Investments existing on the Closing Date set forth on Schedule 7.5. The Loan Parties shall not, and shall not permit any of their respective Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a whollyWholly-owned Restricted Owned Subsidiary Loan Party prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubtor make any Acquisition, the Taurus Acquisition); providedor create or form any Subsidiary, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower Closing Date set forth on Schedule 7.5;
(b) Investments in Cash and its Restricted Subsidiaries may make and hold Permitted Investments;
(ic) Investments by such Persons in or to any Borrower (other than the Borrower Parent and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (iiRLJ Acquisition) or any Secured Loan Party may make Investments in (other than Acorn IP and Acorn Productions or any other Secured Loan Party:
(cParty that is not an operating company) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that so long as such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerconstitute Permitted Intercompany Investments;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received by such Persons in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) Acorn Australia so long as (i) such Investments constitute Permitted Intercompany Investments, (ii) no Default or Event of Default has occurred exists before and after giving effect to any such Investment, (iii) before and after giving effect to any such Investment there shall be at least $3,000,000 of availability under the Revolving Commitment, (iv) prior to making any such Investment the Borrowers shall demonstrate to the satisfaction of the Administrative Agent that the pro forma Senior Leverage Ratio is continuing or would result therefromless than 1.75 to 1.00 before and after giving effect to such Investment, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (yv) 33.0% the amount of Consolidated EBITDA calculated on a Pro Forma Basis for all such Investments shall not exceed $2,000,000 in the then most recently ended Test Periodaggregate;
(fe) Investments by such Persons in or to Acorn Productions so long as (i) such Investments constitute Permitted Intercompany Investments, (ii) no Default or Event of Default has occurred exists before and is continuing or would result therefromafter any such Investment, and (iii) the Total Net Leverage Ratio does amount of all such Investments shall not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for $2,500,000 in the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause aggregate;
(f) have been met;
(g) the transfer by Acorn of the Capital Stock of Acorn UK to Acorn IP so long as (i) no Default or Event of Default has occurred exists before and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time after such transfer and (ii) after giving effect to such transfer the Administrative Agent continues to have a valid and perfected first priority security interest in such Capital Stock;
(g) Permitted Acquisitions;
(h) Investments consisting received in connection with the bankruptcy or reorganization of depositssuppliers or customers and in settlement of delinquent obligations of, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to disputes with, suppliers or customers and similar Persons arising in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Hedging Transactions permitted by Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount7.11;
(j) [reserved]endorsements in the ordinary course of business for collection or deposit;
(k) Investments by consisting of accounts or notes receivable, extensions of trade credit, deposits made in connection with the Borrower purchase price of goods or any Restricted Subsidiary services, endorsement of negotiable instruments and deposits for lease, utility and similar payments and contracts, in each case, in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount ordinary course of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodbusiness;
(l) Investments arising as a result of Hedge Agreements in Foyle’s War 8 permitted pursuant to under Section 7.107.16;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period[Intentionally Omitted]; and
(n) Purchases of the Capital Stock of Madacy by a Loan Party from the minority shareholders of Madacy, so long as (i) the total purchase price therefor does not exceed $325,000, (ii) such purchase occurs within sixty (60) days following the Closing Date, (iii) no Default or Event of Default exists before and after giving effect to such purchase, (iv) the Borrower Representative shall have given the Administrative Agent at least ten (10) days’ prior written notice before making such purchase, and (v) simultaneously with such purchase, Borrowers shall cause all such Capital Stock to become subject to the Lien of the Administrative Agent created under the Collateral Documents. For purposes of determining the amount of any Investment outstanding for purposes of this Section 7.5, such amount shall be deemed to be the cost of such Investment when made, purchased or acquired, net of any amount representing return of (but not return on) such Investment and without regard to any forgiveness of Indebtedness. Additionally, any Investment in any Person permitted to be made under Sections 7.5(c), (d), or (e) may be made by making Permitted Intercompany Investments in Unrestricted Subsidiaries in an aggregate amount not the parent companies of such Person so long as one hundred percent (100%) of the cash proceeds of such Permitted Intercompany Investments are used immediately by such parent companies to exceed at any time make the greater of Investments permitted under Sections 7.5(c), (x) $25,000,000 and d), or (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periode).
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit the Parent or any of its Restricted the Subsidiaries of the Parent to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of a Person, or any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another any other Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “"Investments”) "), except: Investments (other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, that:
(a) the Borrower and its Restricted Subsidiaries may make and hold Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 (including Investments in Subsidiaries); Permitted Investments; Investments constituting Permitted Acquisitions and (ii) the Acquisition; Guarantees by the Parent and its Subsidiaries to the extent constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Loan Party may make shall be subject to the limitation set forth in clause (e) immediately below in this Section 7.4; Investments made by the Parent in or to any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Parent and by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted any Subsidiary of the Borrower;
Parent to the Parent or in or to another Subsidiary of the Parent; provided, that, after the Closing Date, the aggregate amount of Investments by Loan Parties in or to, and Guarantees by Loan Parties of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party (dincluding all such Investments and Guarantees existing on the Closing Date) the Borrower and its Restricted Subsidiaries may hold shall not exceed $10,000,000 at any time outstanding; Investments constituting non-cash proceeds in trade receivables or received in connection with a sale the bankruptcy or other disposition reorganization of assets to the extent permitted by Section 7.6 or suppliers and customers and in connection with the settlement of delinquent obligations owing to it of, and other disputes with, customers and suppliers arising in the ordinary course of business; Investments consisting of deposit accounts maintained by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower Parent and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travelin connection with their cash management system; Investments consisting of non-cash consideration from a sale, entertainmentassignment, relocation transfer, lease, conveyance or other disposition of Property permitted by Section 7.6; Investments constituting contributions to and related expenses payment of benefits by the Parent or its Subsidiaries under any Plan in existence as of the Closing Date as required by the benefit commitments in such Plan as of the Closing Date; Hedging Transactions permitted by Section 7.10; and Other Investments in addition to those permitted elsewhere in this Section 7.4 in an aggregate amount not to exceed $15,000,000 5,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, or make any capital contribution to, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of a Person, or any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another any other Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries as of the Closing Date);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Investments of a Person Loan Party shall be subject to the limitation set forth in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerclause (d) hereof;
(d) Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with or to another Subsidiary; provided, that the settlement aggregate amount of obligations owing to it Investments by financially troubled debtorsLoan Parties in or to, and Guarantees by Loan Parties of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party (including all such Investments and Guarantees existing on the Closing Date) shall not exceed $10,000,000 at any time outstanding;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 10,000,000 at any time and time;
(iif) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and Hedging Transactions permitted by Section 7.10;
(g) any Investment in a Securitization Subsidiary or any Investment by a Securitization Subsidiary in any other credits extended to customers and similar Persons Person in the ordinary course of businessconnection with a Qualified Securitization Financing;
(h) a Restricted Subsidiary of other Investments which in the Borrower may be established or created (but aggregate do not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12exceed $100,000,000 in any Fiscal Year;
(i) without duplication of any other clause of this to the extent permitted by Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment7.5, the Borrower’s redemption or purchase of the Borrower’s common stock pursuant to any open-market stock repurchase program implemented by the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amountfrom time-to-time;
(j) [reserved]to the extent permitted by Section 7.5, the Borrower’s redemption or purchase of the Borrower’s common stock from employees in connection with any equity compensation plan implemented by the Borrower from time-to-time;
(k) Investments made in or to any Person to finance the purchase by such Person of a franchise from the Borrower or any Restricted Subsidiary which in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall do not exceed at $10,000,000 in any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodFiscal Year;
(l) Investments arising as a result made in or to any customer of Hedge Agreements permitted pursuant the Borrower or any Subsidiary to Section 7.10finance any such customer’s purchase of termite or similar bonds which in the aggregate do not exceed $25,000,000 in any Fiscal Year;
(m) Investments in joint ventures in an the purchase of customer contracts; provided, that such purchases are limited solely to customer contracts and the aggregate amount purchase price paid for such customer contracts does not to exceed at $100,000,000 in any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodFiscal Year; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not comprised of obligations of the Borrower or any Subsidiary to exceed pay deferred employment compensation, provided, that any such obligations are, at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodall times, fully funded.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Personunit, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guarantees constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainmentrelocation, relocation entertainment and related expenses in an aggregate amount not and to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons owner-operators in the ordinary course of business, which in the aggregate do not exceed $2,000,000 at any time;
(e) Investments made by the Borrower in or to any Subsidiary and by any Subsidiary to the Borrower or in or to another Subsidiary; provided, that the aggregate amount of Investments by Loan Parties in or to, and Guarantees by Loan Parties of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party (including all such Investments and Guarantees existing on the Closing Date) shall not exceed $5,000,000 at any time outstanding;
(f) Hedging Agreements permitted by Section 7.10;
(g) Commencing January 1, 2006, Investments in or an Acquisition of any Person not to exceed $5,000,000 during any fiscal year of Borrower. The Borrower shall provide the Administrative Agent with all relevant documentation concerning an Investment or Acquisition permitted by this subsection at least 15 days prior to such Investment or Acquisition;
(h) An Investment in Trucking Company A consisting of an initial purchase of common stock with a Restricted Subsidiary purchase price not to exceed $7,000,000, with the subsequent conveyance, lease or transfer of the Borrower may be established or created operating assets (but not capitalized unless otherwise permitted under this Section 7.4including Rolling Stock) so long as, to Trucking Company A (subject to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions limitations of Section 5.127.6), pursuant to one or more purchase, trade, lease, or independent contractor arrangements;
(i) without duplication Investments consisting of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at Subsidiary Guarantee Agreement and the time of such Investment, the Borrower Indemnity and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available AmountContribution Agreement;
(j) [reserved]Investments consisting of promissory notes received as proceeds of any asset sales permitted by Section 7.6 of this Agreement;
(k) Investments consisting of any Guarantee provided by the Borrower or any Restricted Subsidiary in of its Subsidiaries relating to the Borrower Borrower's or any Restricted such Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period's owner-operator tractor financing program;
(l) Investments arising as a result by Borrower in the form of Hedge Agreements any redemption or repurchase of common stock of the Borrower which is permitted pursuant to under Section 7.10;7.5; and
(m) Other Investments which in joint ventures the aggregate do not exceed $4,000,000 in an aggregate amount not to exceed at any time fiscal year of the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodBorrower.
Appears in 1 contract
Samples: Revolving Credit and Letter of Credit Loan Agreement (Us Xpress Enterprises Inc)
Investments, Loans, Etc. The Borrower Parent will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interests, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make any loans or advances toInvestment, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person in existence at Guarantees by the time such Person becomes a Restricted Subsidiary of Parent and its Subsidiaries constituting Indebtedness permitted by Section 7.1 and Liens permitted by Section 7.2 or other Guarantees by the Borrower may be held by such Restricted Subsidiaryand its Subsidiaries of other obligations not constituting Indebtedness incurred in the ordinary course of business; provided that such Investments were the aggregate principal amount of Indebtedness of Subsidiaries that are not made Subsidiary Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in connection with or anticipation subsection (d) of such Person becoming a Restricted Subsidiary of the Borrowerthis Section;
(d) Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection or to another Subsidiary; provided that the aggregate amount of Investments by the Loan Parties in or to, and Guarantees by the Loan Parties of Indebtedness of, any Subsidiary that is not a Loan Party shall not exceed $5,000,000 at any time outstanding; provided further, that no such Investments made pursuant to this clause (d) in the form of intercompany loans shall be evidenced by a promissory note unless (x) such promissory note is pledged to the Administrative Agent in accordance with the settlement terms of obligations owing the Security Agreement and (y) all such Indebtedness of any Loan Party owed to it by financially troubled debtorsany Subsidiary that is not a Loan Party shall be unsecured and subordinated to the Obligations pursuant terms reasonably satisfactory to the Administrative Agent;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Investments made by the Borrower and its Restricted or any Subsidiary in Foreign Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount invested from the date hereof not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period2,000,000 at any time outstanding;
(f) so long payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as no Default or Event expenses of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower Parent and its Restricted Subsidiaries may make additional Investments (for accounting purposes and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), that are made in the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations ordinary course of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been metbusiness;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an business; provided that the aggregate amount of all such loans and advances does not to exceed $15,000,000 400,000 at any time outstanding;
(h) promissory notes and other non-cash consideration received in connection with the disposition of any asset permitted under Section 7.6;
(iii) Hedging Transactions permitted by Section 7.9;
(j) Investments consisting permitted under Section 7.3, including Permitted Acquisitions and Investments of deposits, expense prepayments, accounts receivable arising, any Person existing at the time such Person becomes a Loan Party or consolidates or merges with a Loan Party (including in connection with a Permitted Acquisition) in connection with a transaction permitted hereby so long as such Investments were not made in contemplation of such Person becoming a Loan Party or of such consolidation of merger;
(k) extensions of trade debt granted and other credits extended credit in the ordinary course of business to customers of the Parent and similar Persons its Subsidiaries and advances made in connection with the purchase of goods or services in the ordinary course of business;
(hl) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply Investments received in connection with the provisions bankruptcy or reorganization of, or settlement of Section 5.12delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(im) without duplication of any Receivables, security deposits or other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not trade payables owing to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary of its Subsidiaries if created or acquired in the Borrower ordinary course of business and payable or any Restricted Subsidiary; provideddischargeable in accordance with customary trade terms;
(n) deposit accounts;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit or lease, however that utility and other similar deposits and deposits with suppliers in the ordinary course of business;
(p) other Investments which in the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall do not exceed at any time outstanding do not exceed the greater of (x) $25,000,000 10,000,000 and (y) 7.520% of Consolidated EBITDA calculated on a Pro Forma Basis for as of the then most recently ended Test Period;
(l) Investments arising as a result last day of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(nq) so long as no Event of Default shall have occurred and be continuing or would otherwise result therefrom, other Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time such that the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated Leverage Ratio on a Pro Forma Basis for would be less than or equal to 2.25:1.00 as of the then last day of the most recently ended Test Period.
Appears in 1 contract
Investments, Loans, Etc. The Borrower CheckFree Parties will not, and will not permit any of its Restricted their Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(ai) Investments (other than Permitted Investments) existing on the Borrower date hereof and its Restricted Subsidiaries may make and hold set forth on Schedule 5.3(d) (including Investments in Subsidiaries);
(ii) Permitted Investments;
(iiii) Accounts receivable of any CheckFree Party or any Subsidiary arising from advances made by them in the Borrower ordinary course of business;
(iv) cash deposits made in the ordinary course of business pursuant to the requirements of government agencies or public utilities;
(v) advances resulting in the ordinary course of business from overdrafts in connection with the ACH Programs and its Restricted other similar programs and arrangements for the provision of ACH Services with parties other than Funding Parties and in connection with the ARC Transmission Agreement;
(vi) Guarantees of Indebtedness of Subsidiaries may hold permitted by Section 5.3(a) and Guarantees of Indebtedness of CheckFree or Services to the extent the underlying Indebtedness is not otherwise prohibited hereunder;
(vii) Guarantees of obligations that do not constitute Indebtedness, to the extent guaranteed in the ordinary course of business or otherwise consistent with past practices;
(viii) Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) made by any Loan CheckFree Party may make Investments or any Subsidiary to or in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted CheckFree Party or Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrower;
(dix) the Borrower and its Restricted Subsidiaries may hold Investments constituting nonNon-cash proceeds consideration received in connection with a any sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtors5.3(f);
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% Investments obtained in respect of Consolidated EBITDA calculated on a Pro Forma Basis for any settlement of accounts receivables or other claims owing to any CheckFree Party or any Subsidiary in the then most recently ended Test Periodordinary course of business;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (ixi) loans or advances to employees, officers or directors of the Borrower any CheckFree Party or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiaryexpenses; provided, however however, that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall all such loans and advances does not exceed $2,500,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodtime;
(lxii) Investments arising as a result of Hedge Agreements Hedging Obligations permitted pursuant to by Section 7.105.3(i);
(mxiii) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodPermitted Acquisitions; and
(nxiv) Other Investments which in Unrestricted Subsidiaries in an the aggregate amount do not to exceed $50,000,000 at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodoutstanding.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guarantees constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) Investments made by the Borrower in or to any Subsidiary Loan Party and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsa Subsidiary Loan Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 1,000,000 at any time;
(f) repurchases of shares of Capital Stock and options to purchase shares of Capital Stock of the Borrower, and provided, that for the purpose of this clause (f) at the time such repurchase is made and after giving effect thereto (i) no Default or Event of Default has occurred and is continuing nor would occur and (ii) the Borrower would be in compliance with the financial covenants contained in Article 6 (other than Section 6.3) on a pro forma basis;
(g) Permitted Acquisitions;
(h) Hedging Transactions permitted by Section 7.10;
(i) Investments consisting of deposits, expense prepayments, extensions of credit in the nature of accounts receivable arising, or notes receivable arising from the grant of trade debt granted and other credits extended to customers and similar Persons credit in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established , and Investments received in satisfaction or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, partial satisfaction thereof from financially troubled account debtors to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments reasonably necessary in an amount not order to exceed the Available Amountprevent or limit loss;
(j) [reserved];Investments consisting of receivables and notes received from students in the ordinary course of business; and
(k) Other Investments by the Borrower or any Restricted Subsidiary which in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall do not exceed at $5,000,000 in any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodFiscal Year.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Strayer Education Inc)
Investments, Loans, Etc. The Borrower Lessee will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-wholly owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guaranty any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called "Investments"), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower date hereof and its Restricted Subsidiaries may make and hold set forth on Schedule 5.17 (including Investments in Subsidiaries);
(b) Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date and set forth on Schedule 7.4 and (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guaranties constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 5.14;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received made by any Obligor in connection with a sale or to any other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtorsObligor;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower Lessee or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses expenses;
(f) Hedging Agreements permitted by Section 5.23; ------------
(g) promissory notes issued to the Lessee as a part of the purchase price in an aggregate amount not to exceed $15,000,000 at any time and connection with the sale of American Cafe, Tia's or L&N Seafood;
(iih) Investments consisting in franchise operators through the Franchise Partner Program;
(i) Investments received in settlement of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Indebtedness created in the ordinary course of business;
(hj) a Restricted Subsidiary of Investments in the Borrower may be established stock or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication other assets of any other clause of this Person that is engaged in a business permitted by Section 7.45.16(b) that, so long as the Available Amount Conditions are satisfied at the time a result of such Investment, becomes a Subsidiary of Lessee (other than Hostile Acquisitions); provided, however, that the Borrower and its Restricted Subsidiaries may make aggregate purchase price of Investments in an amount not made pursuant to exceed the Available Amount;
this subsection (j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time ten percent (10%) of the greater Consolidated Net Worth of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA the Lessee as calculated on a Pro Forma Basis the last day of Fiscal Quarter for which the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted Lessee has delivered, or is required to have delivered, financial statements to the Funding Parties pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodthis Master Agreement; and
(nk) Investments in Unrestricted Subsidiaries in an aggregate amount not common stock of the Lessee to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodextent permitted under Section 5.18.
Appears in 1 contract
Samples: Master Agreement (Ruby Tuesday Inc)
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called "Investments"), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries), together with additional Investments made after the Closing Date in the Capital Stock of Subsidiaries listed on Schedule 7.4 so long as no Event of Default has occurred or would result after giving effect to such additional Investment;
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not mergers, consolidations or acquisitions made in connection compliance with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.3;
(d) Investments made by the Borrower and or any of its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtorsany Loan Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, other Investments made by the Borrower and or any of its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in or to any Person in an aggregate amount not to exceed $150,000,000; provided, however, that (i) the greater aggregate amount of Investments under this clause (xe) by Loan Parties in or to Foreign Subsidiaries that are not Subsidiary Loan Parties (including Guarantees by Loan Parties of Indebtedness of Foreign Subsidiaries that are not Subsidiary Loan Parties) shall not exceed $120,000,000 100,000,000 at any time outstanding and (yii) 33.0% the aggregate amount of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodInvestments by Loan Parties under this clause (e) in or to Domestic Subsidiaries that are not Loan Parties (including Guarantees by Loan Parties of Indebtedness of Domestic Subsidiaries that are not Loan Parties) and in or to other Persons other than Foreign Subsidiaries shall not exceed $100,000,000 at any time outstanding;
(f) so long as no Default Investments received in connection with a bankruptcy or Event reorganization of, or settlement of Default has occurred delinquent accounts and is continuing or would result therefromdisputes with, customers and suppliers, in each case in the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations ordinary course of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been metbusiness;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate outstanding amount of all such loans and advances does not to exceed $15,000,000 5,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of businesstime;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise Capital Expenditures permitted under this by Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;7.7; and
(i) without duplication of any other clause of this Hedging Transactions permitted by Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period7.13.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-wholly owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guaranty any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guaranties constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received made by any Loan Party in connection with a sale or to any other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtorsLoan Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and expenses;
(iif) Hedging Agreements permitted by Section 7.10;
(g) Investments consisting in franchise operators through the Franchise Partner Program;
(h) Investments received in settlement of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons Indebtedness created in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication Investments in the stock or other assets of any other clause of this Person that is engaged in a business permitted by Section 7.47.3(b) that, so long as the Available Amount Conditions are satisfied at the time a result of such Investment, becomes a Subsidiary of Borrower (other than Hostile Acquisitions); provided, however, that the Borrower and its Restricted Subsidiaries may make aggregate purchase price of Investments in an amount not made pursuant to exceed the Available Amount;
this subsection (j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time fifteen percent (15%) of the greater Consolidated Net Worth of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA the Borrower as calculated on a Pro Forma Basis the last day of Fiscal Quarter for which the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted Borrower has delivered, or is required to have delivered, financial statements to the Lenders pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodthis Agreement; and
(nj) Investments in Unrestricted Subsidiaries in common stock of the Borrower to the extent permitted under Section 7.5. Investments under Section 7.4 shall not be permitted if, before or after giving effect to the making of such Investment, a Default or an aggregate amount not to exceed at any time the greater Event of (x) $25,000,000 Default has occurred and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodis continuing.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will Loan Parties shall not, and will shall not permit any of its Restricted their respective Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Wholly Owned Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, guaranty any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) Investments (other than Permitted Investments) existing on the Borrower date hereof and its Restricted Subsidiaries may make set forth on Schedule 7.04 (including Investments in Subsidiaries), and hold any modification, replacement, renewal, reinvestment or extension thereof (provided that the amount of the original Investment is not increased except as otherwise permitted by this Section 7.04);
(b) Permitted Investments;
(ic) Guarantees constituting Indebtedness permitted by Section 7.01 hereof; provided, that the Borrower aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is guaranteed by any Loan Party, when taken together with the Indebtedness permitted by Section 7.01(d) and its Restricted Subsidiaries may hold the aggregate amount of Investments by Loan Parties in or to any Subsidiary that is not a Subsidiary Loan Party (including all such Investments existing on the Fourth Amendment Closing Date and Date) permitted by the succeeding subparagraph (d), shall be subject to the limitation set forth on Schedule 7.4 and in the following subparagraph (ii) any Loan Party may make Investments in any other Loan Party:
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerd);
(d) Investments made by the Borrower in or to any Subsidiary and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent Borrower or in or to another Subsidiary; provided, that the aggregate amount of capital contributions by Loan Parties in or to any Subsidiary that is not a Subsidiary Loan Party, and Guarantees by Loan Parties of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party (including all such Guarantees existing on the Closing Date) permitted by the foregoing subparagraph (c) and Section 7.01(e), when taken together with the Indebtedness permitted by Section 7.6 or in connection with the settlement 7.01(d) of obligations owing a Loan Party to it by financially troubled debtors;any Subsidiary that is not a Loan Party (without duplication), shall not exceed $1,000,000.00 at any time outstanding
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodPermitted Acquisitions;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed Hedging Transactions permitted by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been metSection 7.10 hereof;
(g) so long as no Default Investments received in connection with the bankruptcy or Event reorganization of, or settlement of Default has occurred delinquent accounts and is continuing or would result therefromdisputes with, the Borrower customers, licensors, licensees and its Restricted Subsidiaries may make (i) loans or advances to employeessuppliers, officers or directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons each case in the ordinary course of business;
(h) a Restricted Subsidiary loans and advances in the ordinary course of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) business to employees, officers and directors so long as, as the aggregate principal amount thereof at any time outstanding (determined without regard to the extent applicable, the Borrower any write-downs or write-offs of such loans and such Restricted Subsidiary comply with the provisions of Section 5.12advances) shall not exceed $500,000.00;
(i) without duplication extensions of any other clause trade credit in the ordinary course of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amountbusiness;
(j) [reserved]Investments made as a result of the receipt of non-cash consideration from a sale, transfer or other disposition of any asset in compliance with this Agreement;
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower ordinary course of business consisting of endorsements for collection or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Perioddeposit.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity InterestsCapital Stock, evidence of indebtedness Indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth First Amendment Closing Effective Date and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Restricted Subsidiaries);
(b) cash and Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Guarantees by Borrower and its Restricted Subsidiary of the Borrower may be held Subsidiaries constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) Investments made by the Borrower in or to any Restricted Subsidiary and its by any Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsanother Restricted Subsidiary, including, without limitation, Investments resulting in a Person becoming a Restricted Subsidiary;
(e) so long as (x) no Default or Event of Default has occurred and is continuing or would result therefromtherefrom and (y) the Borrower and the Restricted Subsidiaries demonstrate compliance with the financial covenants set forth in Article VI calculated on a Pro Forma Basis after giving effect thereto, (i) Investments by the Borrower or any Restricted Subsidiary in or to, and Guarantees by the Borrower or any Restricted Subsidiary of Indebtedness of, any Subsidiary that is not (or will not become simultaneously with such Investment) a Restricted Subsidiary (excluding all such Investments and Guarantees existing on the Closing Date) and (ii) Investments in or to entities that are not Subsidiaries, including independent sales organizations and other strategic partners (excluding all such Investments existing on the Closing Date), in the case of clauses (i) and (ii), in an aggregate amount during the term of this Agreement not to exceed the sum of (A) $25,000,000 plus (B) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries may make Investments for the twelve month period ending as of the most recently completed Fiscal Quarter for with financial statements and the related Compliance Certificate were delivered in accordance with Section 5.1(a) or (andb), thereafteras applicable; (the “Investment Basket”); provided, may hold such Investments) in an that, as of any date of determination, if the aggregate amount not of Investments made pursuant to exceed this clause (e) exceeds the greater Investment Basket solely as a result of (x) $120,000,000 and (y) 33.0% of a decline in Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Periodas of such date of determination, such excess shall not in and of itself result in an Event of Default;
(f) so long as (x) no Default or Event of Default has occurred and is continuing or would result therefrom, therefrom and (y) the Borrower and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto Restricted Subsidiaries demonstrate compliance with the financial covenants set forth in Article VI calculated on a Pro Forma Basis for the then most recently ended Test Periodafter giving effect thereto, the Borrower and Borrower’s or one of its Restricted Subsidiaries may make additional Investments Subsidiaries’ purchase (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f)either in cash, through the Borrower shall deliver to the Administrative Agent incurrence of Indebtedness otherwise permitted hereunder, or a Compliance Certificate setting forth in reasonable detail the calculations combination thereof) of the Total Net Leverage Ratio and executed by a Responsible Officer remaining Capital Stock of the Borrower certifying the requirements of this clause (f) have been metPowerPay, Inc.;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances made after the Closing Date to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travelbusiness; provided, entertainmenthowever, relocation and related expenses in an that the aggregate amount of all such loans and advances does not to exceed $15,000,000 3,000,000 at any time and time;
(iih) Hedging Transactions permitted by Section 7.10;
(i) Investments consisting of deposits, expense prepayments, extensions of credit in the nature of accounts receivable arisingor notes receivable arising from the grant of trade credit in the ordinary course of business, trade debt granted and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits extended to customers and similar Persons suppliers in the ordinary course of business;
(hj) a Restricted Subsidiary of the Borrower may be established or created Investments (but not capitalized unless otherwise permitted under this Section 7.4including debt obligations and Capital Stock) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply received in connection with the provisions bankruptcy or reorganization of Section 5.12suppliers and customers or in settlement of delinquent obligations of, or other disputes with, customers and suppliers arising in the ordinary course of business or upon the foreclosure with respect to any secured Investment;
(k) Investments in the ordinary course of business consisting of endorsements for collection or deposit under Article 3 of the Uniform Commercial Code;
(l) a loan to Blueapple Inc, to be used for the payment of certain payroll taxes resulting from the MDP Equity Investment so long as such loan (i) does not exceed an aggregate principal amount of $10,000,000 and (ii) has a term of no more than six (6) months; and
(m) without duplication of any other clause clauses in this Section, other Investments that do not exceed $4,000,000 in the aggregate at any time outstanding, determined as of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time date of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(l) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscapital stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of a Person, or any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another any other Person, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (including), for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) any Investments of a Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held Guarantees constituting Indebtedness permitted by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the BorrowerSection 7.1;
(d) Investments made by the Borrower in or to any Subsidiary Loan Party and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets by any Subsidiary to the extent permitted by Section 7.6 Borrower or in connection with the settlement of obligations owing or to it by financially troubled debtorsanother Subsidiary Loan Party;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans Loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an aggregate amount not to exceed $15,000,000 at any time and (ii) Investments consisting of deposits, expense prepayments, accounts receivable arising, trade debt granted and other credits extended to customers and similar Persons in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved];
(k) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiaryexpenses; provided, however however, that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall all such loans and advances does not exceed $500,000 at any time time;
(f) Hedging Agreements permitted by Section 7.10;
(g) Investments consisting of the greater Acquisition of assets of or equity interests in a Person provided: (xi) $25,000,000 and such Acquisition would not cause the Leverage Ratio or the Minimum Timber Market Value covenants (y) 7.5% of Consolidated EBITDA each calculated on a Pro Forma Basis for taking into account such Acquisition) to be violated; (ii) no Default or Event of Default exists or would exist taking into account such Acquisition; and (iii) the then most recently ended Test Period;
Administrative Agent has received prior to such Acquisition, a Pro Forma Compliance Certificate demonstrating compliance with clause (lii) Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
this subsection; and (mh) Investments in joint ventures in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodFarm Credit Equities.
Appears in 1 contract
Investments, Loans, Etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly-owned Restricted Subsidiary prior to such merger), any Equity Interestscommon stock, evidence of indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other PersonPerson (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that constitute a business unit or division of such another Person, or purchase or acquire all or substantially all of the assets of another Personunit, or create or form any Restricted Subsidiary (all of the foregoing being collectively called “Investments”) other than Investments constituting Permitted Acquisitions (includingSubsidiary, for the avoidance of doubt, the Taurus Acquisition); provided, thatexcept:
(a) the Borrower and its Restricted Subsidiaries may make and hold Investments (other than Permitted Investments;
(i) the Borrower and its Restricted Subsidiaries may hold the Investments existing on the Fourth Amendment Closing Date date hereof and set forth on Schedule 7.4 and (ii) any Loan Party may make including Investments in any other Loan Party:Subsidiaries);
(b) Permitted Investments;
(c) Guarantees by Borrower and its Subsidiaries constituting Indebtedness permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Investments of a Person Loan Party shall be subject to the limitation set forth in existence at the time such Person becomes a Restricted Subsidiary of the Borrower may be held by such Restricted Subsidiary; provided that such Investments were not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Borrowerclause (d) hereof;
(d) Investments made by the Borrower in or to any Subsidiary and by any Subsidiary to the Borrower or in or to another Subsidiary; provided, that (i) the aggregate amount of cash Investments by Loan Parties in or to, and Guarantees by Loan Parties of Indebtedness of, any Subsidiary that is not a Subsidiary Loan Party (including all such Investments and Guarantees existing on the Closing Date and not disclosed on Schedule 7.4) shall not exceed $6,000,000 in the aggregate at any time outstanding and (ii) the aggregate amount of Investments by Loan Parties (specifically excluding Guarantees) in or to any Subsidiary that is not a Subsidiary Loan Party comprised of non-cash Investments comprised of intercompany expense allocations by and between the Borrower and its Restricted Subsidiaries may hold Investments constituting non-cash proceeds received in connection with a sale or other disposition of assets to the extent permitted by Section 7.6 or in connection with the settlement of obligations owing to it by financially troubled debtorsshall be unlimited;
(e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make Investments (and, thereafter, may hold such Investments) in an aggregate amount not to exceed the greater of (x) $120,000,000 and (y) 33.0% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(f) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and the Total Net Leverage Ratio does not exceed 4.00 to 1.00 immediately prior and after giving effect thereto on a Pro Forma Basis for the then most recently ended Test Period, the Borrower and its Restricted Subsidiaries may make additional Investments (and thereafter hold such Investments). Prior to consummating an Investment pursuant to this clause (f), the Borrower shall deliver to the Administrative Agent a Compliance Certificate setting forth in reasonable detail the calculations of the Total Net Leverage Ratio and executed by a Responsible Officer of the Borrower certifying the requirements of this clause (f) have been met;
(g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Restricted Subsidiaries may make (i) loans or advances to employees, officers or directors of the Borrower or any of its Restricted Subsidiaries Subsidiary in the ordinary course of business for travel, entertainment, relocation and related expenses in an expenses; provided, however, that the aggregate amount of all such loans and advances does not to exceed $15,000,000 250,000 at any time and time;
(iif) Hedging Transactions permitted by Section 7.10;
(g) the Purchase Transaction;
(h) Permitted Acquisitions;
(i) Investments consisting of deposits, expense prepayments, accounts receivable arising, the extension of trade debt granted and other credits extended to customers and similar Persons credit in the ordinary course of business;
(h) a Restricted Subsidiary of the Borrower may be established or created (but not capitalized unless otherwise permitted under this Section 7.4) so long as, to the extent applicable, the Borrower and such Restricted Subsidiary comply with the provisions of Section 5.12;
(i) without duplication of any other clause of this Section 7.4, so long as the Available Amount Conditions are satisfied at the time of such Investment, the Borrower and its Restricted Subsidiaries may make Investments in an amount not to exceed the Available Amount;
(j) [reserved]Prepaid expenses in the ordinary course of business;
(k) Investments by Promissory notes and other assets accepted in connection with the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiarysettlement of accounts receivable; provided, however that the aggregate amount of Investments pursuant to this clause (k) in Restricted Subsidiaries that are not Subsidiary Loan Parties shall not exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;and
(l) Other Investments arising as a result of Hedge Agreements permitted pursuant to Section 7.10;
(m) Investments which in joint ventures the aggregate do not exceed $1,000,000 in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; and
(n) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed at any time the greater of (x) $25,000,000 and (y) 7.5% of Consolidated EBITDA calculated on a Pro Forma Basis for the then most recently ended Test PeriodFiscal Year.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Easylink Services International Corp)
